ECJ

INTRODUCTION:

On October 6, 2015,[1] the Court of Justice of the European Union (ECJ) declared invalid a decision of the European Commission on July 26, 2000[2] that had, pursuant to the relevant EU data protection law,[3] granted and acknowledged safe harbour for certain United States entities when transferring the personal data of European Union citizens to, and processing and storing that data within the United States. The case had been referred to the ECJ for a preliminary ruling from the High Court of Ireland, with a subsequent non-binding Opinion from the ECJ Advocate General, Yves Bot,[4] that the ECJ eventually followed.

CASE HISTORY:

The case began when Maximilian Schrems, an Austrian Citizen (and law student at that time), spearheaded a group to file a complaint with the Irish Data Protection Commissioner (DPC)[5] against Facebook Ireland Ltd, which is the company’s European headquarters. When Billy Hawkes, the Irish DPC rejected the case,[6] Schrems and his group sought and were granted judicial review at the High Court of Ireland.[7] Citing pre-emption on the key issues by European law, Mr. Justice Hogan adjourned the case pending referral to the European Court of Justice (ECJ).[8] Those key issues were: (a) whether the Edward Snowden revelations of 2013[9] revealed such a wholesale (both actual and potential) lack of compliance with European law that the U.S. Safe Harbour provisions with regard to transferring the personal information of European Citizens were essentially invalid; and (b) whether EU member states were bound by controlling EU privacy laws regarding those safe harbours, or free to pursue their own investigations into allegations of privacy breach or other non-compliance as and when needed, and were then subsequently able to suspend data transfers if they violated EU laws and/or EU citizen rights. Advocate General Bot had opined in the affirmative on both of these points,[10] and the ECJ agreed.

IMPLICATIONS:

Being effective immediately and with no grace period (or period of suspended invalidity as would likely have been applicable in Canada,[11] were the matter heard under Canadian jurisdiction),[12] the ruling immediately put the businesses and business practices of thousands of entities in legal jeopardy for their reliance on an invalid law. Fortunately for all, the European Union’s 28 national data protection authorities, acting through their Article 29 Working Party, issued an October 16, 2015 statement[13] encouraging those entities impacted by the ruling to negotiate, establish, and implement their own interim measures to ensure compliance with the ruling, including, in a later Q&A compliance release of November 6, 2015, that they “consider putting in place any legal and technical solutions to mitigate any possible risks they face when transferring data”;[14] assuring European businesses and citizens that privacy and data protection remained key elements of European law, and that they would issue further guidance at a national level, but at a later date; and implying quite strongly, that coordinated enforcement actions might issue if an appropriate successor framework could not be negotiated with the United States by the end of January, 2016.[15] That specific “deadline” language, read:

“If by the end of January 2016, no appropriate solution is found with the US authorities and depending on the assessment of the transfer tools by the Working Party, EU data protection authorities are committed to take all necessary and appropriate actions, which may include coordinated enforcement actions.”[16]

Essentially, then, the Commissioners agreed to implement a suspended enforcement as they could not retroactively seek or secure any period of suspended invalidity from the ECJ, and nobody had asked for one to be considered on the possibility of such a decision resulting. It would have been interesting to read the ECJ views on Canadian and other such precedent …. Perhaps we’ll read that some other time!

For now, we watch as companies scramble to “not” comply with this newly invalid law;[17] we wait for both that national European guidance (whether or not uniform or coordinated);[18] and we follow – to the extent made public – negotiations between the United States and Europe up to January 31, 2016. There may already be light at the end of that negotiation tunnel, as two identical bills – H.R.1428[19] in the House of Representatives (now passed by the full House), and S.1600 in the United States Senate[20] may eventually grant the United States District Court for the District of Columbia (USDC, DC) exclusive jurisdiction to hear foreign citizens’ privacy breach complaints against federal (not state) government actors of the United States. But, only the President can sign any final version of either Bill, into law.

In addition, the matter – now transferred back to the Irish High Court for further deliberations, may still result in a finding that Facebook cannot provide adequate data privacy protections for European citizens. If again referred or appealed to the ECJ, and upheld, Facebook’s European operations might cease under subsequent enforcement actions in one or many European jurisdictions on such a ruling.

And so, one way or the other, we wait![21]

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Author:

Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experiences in regulatory compliance, litigation, and business law and counseling. He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT). See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

[1] Schrems (Judgment) [2015] EUECJ C-362/14 (06 October 2015), [2015] EUECJ C-362/14, [2015] WLR(D) 403, EU:C:2015:650, ECLI:EU:C:2015:650. Online: http://www.bailii.org/eu/cases/EUECJ/2015/C36214.html

[2] Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce (OJ 2000 L 215, p. 7)

[3] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).

[4] Case C-362/14 Maximillian Schrems v. Data Protection Commissioner [2015] EUECJ C-362/14, Opinion of AG Bot (23 September 2015). Online: http://www.uni-muenster.de/Jura.itm/hoeren/itm/wp-content/uploads/C0362_2014-EN-Opinion.pdf

[5] RTE News. Data Protection Commissioner says no action will be taken against Apple and Facebook. Published on rte.ie, July 26, 2013. Online: http://www.rte.ie/news/2013/0726/464770-data-protection/

[6] Id.

[7] Schrems v. Data Protection Commissioner [2014] IEHC 310 (18 June 2014). Online:http://www.bailii.org/ie/cases/IEHC/2014/H310.html

[8] Ruadhán Mac Cormaic. High Court refers Facebook privacy case to Europe. Published on irishtimes.com, June 19, 2014. Online: http://www.irishtimes.com/business/technology/high-court-refers-facebook-privacy-case-to-europe-1.1836657

[9] Barton Gellman. Edward Snowden, after months of NSA revelations, says his mission’s accomplished. Published on washingtonpost.com, December 23, 2013. Online: >http://www.washingtonpost.com/world/national-security/edward-snowden-after-months-of-nsa-revelations-says-his-missions-accomplished/2013/12/23/49fc36de-6c1c-11e3-a523-fe73f0ff6b8d_story.html

[10] Supra note 4.

[11] Schachter v. Canada, [1992] 2 S.C.R. 679 at 715-16, 1992 CanLII 74 (SCC) per Lamer, CJ. Online: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/903/index.do

A court may strike down legislation or a legislative provision but suspend the effect of that declaration until Parliament or the provincial legislature has had an opportunity to fill the void. This approach is clearly appropriate where the striking down of a provision poses a potential danger to the public (…) or otherwise threatens the rule of law (…). It may also be appropriate in cases of underinclusiveness as opposed to overbreadth. For example, in this case some of the interveners argued that in cases where a denial of equal benefit of the law is alleged, the legislation in question is not usually problematic in and of itself. It is its underinclusiveness that is problematic so striking down the law immediately would deprive deserving persons of benefits without providing them to the applicant. At the same time, if there is no obligation on the government to provide the benefits in the first place, it may be inappropriate to go ahead and extend them. The logical remedy is to strike down but suspend the declaration of invalidity to allow the government to determine whether to cancel or extend the benefits. (Citations omitted).

[12] As I wrote in an earlier blog post, Canadians are very much aware of the challenges of international data governance and transnational privacy protection. See e.g. Ekundayo George. In who’se pocket is your data packet? – International Data Governance. Published on ogalaws.wordpress.com, February 6, 2013. Online:

https://ogalaws.wordpress.com/2013/02/06/in-whose-pocket-is-your-data-packet-international-data-governance/

[13] Article 29 Working Party (Art. 29 WP). Statement on the implementation of the judgement of the Court of Justice of the European Union of 6 October 2015 in the Maximilian Schrems v Data Protection Commissioner case (C-362-14). Brussels, October 16, 2015. Online: http://ec.europa.eu/justice/data-protection/article-29/press-material/press-release/art29_press_material/2015/20151016_wp29_statement_on_schrems_judgement.pdf

[14] European Commission – Fact Sheet. Q&A: Guidance on transatlantic data transfers following the Schrems ruling.

MEMO/15/6014. Brussels, November 6, 2015. Online: http://europa.eu/rapid/press-release_MEMO-15-6014_en.htm

[15] Supra, note 13.

[16] Id.

[17] See e.g. supra, note 14.

[18] Technology executives and politicians alike have even warned that if these concerns over, and an increasingly vocal resistance to, targeted and/or bulk collection of personal data through government surveillance continue to “trend”, we may very soon see a real splintering of the internet into several disparate and walled-off variants. See e.g. Stephen Lawson, IDG News Service. Jitters over US surveillance could break the Internet, tech leaders warn. Published on itworld.com, October 8, 2014. Online: http://www.itworld.com/article/2825590/security/jitters-over-us-surveillance-could-break-the-internet–tech-leaders-warn.html

[19] First introduced in the United States House of Representatives (the “House”) on March 18, 2015 by Representative F. James Sensenbrenner, a Wisconsin Republican, the HR.1428 Bill is officially known as The Judicial Redress Act of 2015, and has a stated purpose “[t]o extend Privacy Act remedies to citizens of certified states, and for other purposes”. Online: https://www.congress.gov/bill/114th-congress/house-bill/1428/all-info

[20] First introduced in the United States Senate (the “Senate”) on June 17, 2015 by Senator Christopher S. Murphy, a Connecticut Democrat, the S.1600 Bill has now been referred (as H.R.1428) to the Senate Judiciary Committee, but it is yet to be considered and voted upon by the full Senate. Online: https://www.congress.gov/bill/114th-congress/senate-bill/1600/all-info

[21] *Reserved (pending further news).

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SCC_2015

WHAT IS MAINSTREAM RELIGION?

There are many faiths in this world of ours. These range from about 36 (“thirty-six”) mainstream ones;[1] through a handful of known or colonially-inspired and often derided, or not so widely accepted or even historically acceptable ones;[2] to the very many thousands of traditional beliefs, and “new-age” faiths.[3]

Just as there exists this multiplicity, there is also a wide variety of state systems within which they operate. These range from sole state religions, as in the case of Saudi Arabia; tolerant Islamic states (including Iraq under Hussein, Libya under Ghaddafi, and Syria under both Assad Senior and Assad Junior), all of which allowed or still try to protect, the existence and exercise of myriad Islamic branches, Christianity, and Judaism; preferred state religions – witness the preference for Chinese Buddhism over Tibetan Buddhism; and systems where a dominant mainstream religion co-exists with others as with India’s many Christians, Moslems, and members of other faiths, or in the tolerance of Japanese mainstream Shinto for several other faiths. The predominant peace under tolerant mainstream systems compares quite starkly with rising religious strife in many parts of the world, including Africa, Europe, or other jurisdictions where relatively stable systems, despite their real or alleged imperfections, were dramatically and lastingly upset of recent.

WHY THE FUSS?

Into this milieu, steps the Supreme Court of Canada, with a recent ruling based on freedom of conscience and religion,[4] but it works to promote freedom from conscientious religion in a multicultural and pantheistic democracy. This slippery slope raises the stakes as the decision promoted Atheism, which, being a non-religion (by self-definition), is free to be raised above mainstream, new age, and traditional faiths. Over time, as one or more mainstream faiths quaver under this rising pressure, will the other mainstream faiths stand together to defend their uncommon ground,[5] or will they join the fray and squeeze one another until all are equally diluted, or banned outright in their public exercise as offensive to Atheism – because the state cannot be seen (or be alleged) to have favoured one or some, over the others whether within the province of Quebec,[6] or within the entire Canadian Federation?[7]

Also, looking more closely at the globally-pervasive United States currency, our neighbor to the south (which reads “In God we trust”), and listening to elected and electioneering politicians all over the world who consistently ask God to bless both their electorates and nations, one starts to see how widespread religion truly is, and what it would mean if all this were to suddenly be declared unconstitutional, and/or ordered to cease. This goes far beyond the case at bar, and begs the further question: can government entities in Canada (and government-licensed or government-regulated entities, such as municipalities and the banks) one day be barred from trading, holding, or aiding Canadians in using, U.S. currency?

This may all seem like absurd scaremongering at this time. However, the shadow cast by the decision has potentially far-reaching consequences, as I will show with the following analysis and conclusions.

EARLIER RULINGS:

In the Canadian City of Saguenay, Quebec, the mayor would commonly commence and end City Council meetings with a prayer.[8] There were also religious symbols in some City Council chambers. Alain Simoneau, a resident of Saguenay who regularly attended these meetings of the City Council, found this all to be religious and therefore offensive to his own Atheist status, and so Simoneau had initially asked the Mayor to stop the practice.

The Commission.

When the Mayor refused, Simoneau sought relief at the Quebec Commission des droits de la personne et des droits de la jeunesse (hereinafter the “Commission”) for violation of his rights under sections 3 and 10 of the Quebec Charter of Human Right and Freedoms.[9] The Commission focused on whether the prayer was discriminatory (choosing not to consider the religious symbols, and so stating) and found so in the affirmative; however, it left Simoneau to pursue his claims further on his own, at the Human Rights Tribunal (hereinafter “Tribunal”).[10]

The Tribunal.

As this was happening, the Saguenay City Council passed a Bylaw changing the prayer’s wording and providing for a break between the prayer’s recitation, and the actual start of its meetings.[11] In addition, Simoneau was joined in his complaint to the Tribunal by the Mouvement laïque québécois (hereinafter “MLQ”), with a joint and amended application that now also sought a declaration that the Bylaw was ineffective and of no force or affect as against S.[12] The Tribunal found an actual and detrimental breach of the state’s duty of religious neutrality and granted the declaration,[13] awarding S $30,000 in compensatory and punitive damages (of the $50,000 originally sought), and ordering that the City and mayor cease and desist in the prayer within council chambers and remove all religious symbols (including a Sacred Heart statue and a crucifix) from rooms where council meetings were held.[14] The City Council and mayor appealed, and the Quebec Court of Appeal reversed the Tribunal’s decision.[15]

The Quebec Court of Appeal.

The Quebec Court of Appeal made sure to first note the implicit duality of modern religious freedom, at paragraph 59 of its decision:

Freedom of religion exists in two distinct forms. The first, characterized in case law and commentary as the positive aspect doctrine […] is essentially the recognition that every person has the right to hold religious beliefs and to profess them openly. The second is expressed in a negative form in that it is forbidden to impose coercion or constraint upon the choice to act in accordance with one’s conscience or to impose a religious choice.[16] [Emphasis added].

Citing to the evidence of the expert witnesses before the Tribunal, Gagnon, J.A. wrote at paragraph 88, that: “I take from the opinions of these experts that the values expressed by the prayer at issue are universal and cannot be identified with any particular religion. According to these experts, this prayer is consistent with modern theistic doctrine, open to some reasonable non-invasive and religious particularities.”[17] [Emphasis added]. Further bolstering this conclusion, Gagnon, J.A. also noted the ongoing recitation of prayer in the House of Commons (albeit with the doors closed to the public),[18] the affirmation of God’s supremacy in the preamble to the Canadian Charter of Rights and Freedoms (Charter),[19] and adoption of a resolution by the Quebec National Assembly in May, 2008, to preserve the cross in its blue room and on the Quebec Coat of Arms,[20] to conclude that: “[i] am convinced by these examples that the principle of the religious neutrality of the State is intended to promote tolerance and openness in regard to diversity and not to exclude from the reality of a society any references to its history, albeit religious.” […] “I conclude, on the basis of the foregoing, that the content of the prayer included in Bylaw VS-R-2008-40 cannot constitute an infringement to the neutrality of the City.”[21] In reversing the Tribunal decision, Gagnon, J.A., ruled that any constraint on the stated rights of Simoneau by the infringement, was therefore “trivial or insubstantial”.[22] In addition, the religious symbols were “for a significant portion of the population, deprived of their religious connotation (…).”[23] In the final analysis, he wrote: “(…) I add that it has not been shown that Simoneau was the subject of a distinction in violation of the principles of substantive equality. In any event, the demonstration of harm is non-existent here.”[24]

Far from being one-sided, however, he did rebuke the mayor of Saguenay for being so cavalier in freely expressing his personal religious beliefs – by crossing himself so brazenly while in public office, and openly bragging of his love for and support of Christ.

These are words and behaviour that reflect a basic lack of reserve from one who holds an elected position and participates in the governance of the City on a daily basis. It seems quite inappropriate that a prestigious office could be used to promote one’s own personal religious beliefs. Moreover, nobody has argued before this Court that the voters of the City of Saguenay chose their representatives for their avowed belief in any divinity.[25]

Concurring in the overall result but disputing the choice of Gagnon, J.A., to deal with the issue of religious symbolism (which the Tribunal had exceeded its authority in addressing), Hinton J.A., wrote that: “[t]he issue of religious symbols is both delicate and difficult. In the context of this appeal, there are certainly distinctions to be made between the legality of a 20-second, non-denominational prayer recited in public before the opening of the Council meetings of the City Saguenay when it is still possible to leave the room and the permanent presence of religious symbols in two of the City’s three meeting rooms, on the other.[26] But, as Hinton J.A. rightly and perhaps clairvoyantly stated, the matter would likely still arise at a time and place in which it could be more timely and more fully addressed.

In light of this, it is certainly possible that the issue of the legality of crucifixes in courtrooms where trial judges always sit (many of whom are not Catholic or of any denomination) will be debated some day. Ultimately, courthouse courtrooms serve the entire population of Quebec, including its interconfessional and non-denominational components.[27]

AT THE SUPREME COURT:

The Supreme Court of Canada diverged completely from the prevailing conclusion of the Quebec Court of Appeal that “[w]hile Simoneau does invoke several irritants that he elevates to the level of injury, his arguments do not withstand scrutiny.”[28] The Court therefore reversed the Quebec Court of Appeal, modified the prevailing standard of review, and re-affirmed the original decision of the Tribunal.[29]

Preceded and followed by the Councilors making the sign of the cross and the mayor stating: “[i]n the name of the Father, the Son and the Holy Spirit”,[30] the text of the offending prayer as used between 2002 and November of 2008, read:

[TRANSLATION] “O God, eternal and almighty, from Whom all power and wisdom flow, we are assembled here in Your presence to ensure the good of our city and its prosperity.

We beseech You to grant us the enlightenment and energy necessary for our deliberations to promote the honour and glory of Your holy name and the spiritual and material [well-being] of our city.

Amen.[31]

As reproduced by the Court, the Bylaw, VS-R-2008-40, adopted by council on November 3, 2008, read in pertinent part as follows:

“[TRANSLATION] WHEREAS there exists within the City of Saguenay a tradition to the effect that Council meetings [are preceded by] the recitation of a prayer, the text of which is reproduced below;

WHEREAS the purpose of this tradition is to ensure decorum and highlight the importance of the work of the councillors;

WHEREAS the members of Council, unanimously, want this tradition to continue and wish to pursue it on the basis of their individual rights and freedoms, in particular their rights to freedom of expression, conscience and religion;

WHEREAS it is important to specify that the Council members and the public are in no way obligated to recite this prayer or attend its recitation;

WHEREAS it is important to ensure that members of the Council and of the public who do not wish to attend the recitation of this prayer may nevertheless attend the Council session in its entirety;

NOW THEREFORE, it is enacted as follows:

SECTION 2 — Bylaw VS-2002-39 is amended to add section 16.1, which provides the following:

SECTION 16.1 — Once the chairperson of the meeting enters the Council deliberation room, the Council members who wish to do so may rise to recite the traditional prayer, the text of which is reproduced below.

Almighty God, we thank You for the great blessings that You have given to Saguenay and its citizens, including freedom, opportunities for development and peace. Guide us in our deliberations as City Council members and help us to be aware of our duties and responsibilities. Grant us the wisdom, knowledge and understanding to allow us to preserve the benefits enjoyed by our City for all to enjoy and so that we may make wise decisions.

Amen.

To allow Council members and the public who do not wish to attend the recitation of the prayer to take their places in the room, the chairperson of the meeting will declare the Council session open two minutes after the end of the recitation of the prayer.”[32]

In the Quebec Court of Appeal, Gagnon, J.A. had ajudged the Tribunal to be a specialized body considering a matter of public importance, but one over which it lacked exclusive jurisdiction; and therefore he had chosen to apply the “correctness” standard of review to the overall decision.[33] However, regarding evidence admitted by the Tribunal from an improperly qualified expert, Gagnon, J.A. ruled that, “(…) this Court has the duty to intervene, when warranted by circumstance, if it is established that there has been a palpable and overriding error on this issue.”[34] Writing for the supermajority of the Supreme Court, Gascon J, put an end to this bifurcation of standards on appeal.

First, Gagnon J.A. applied both administrative law principles related to judicial review (the correctness standard) and tests applicable to appeals (palpable and overriding error). With respect, the result is a confusing conceptual hybrid. Given the current state of the Court of Appeal’s case law on this point, it seems to be hard for litigants to understand the rules. Clarification is needed to ensure greater consistency and some predictability. Where, as in this case, a statute provides for an appeal from a decision of a specialized administrative tribunal, the appropriate standards of review are, in light of the principles laid down by this Court, the ones that apply on judicial review, not on an appeal.[35] [Emphasis added].

Further, citing the line of reasoning developed in the 2002 Supreme Court case of Housen v. Nikolaisen,[36] Gascon J, wrote that “[w]here an appeal concerns a question of law, intervention is required if the decision is incorrect. Where an appeal concerns a question of fact or a question of mixed fact and law, intervention is warranted if there is a palpable and overriding error.”[37] Weighing one (albeit obiter) line of reasoning in the Quebec Court of Appeal that permitted review of a decision based on expanded criteria not considered below or as otherwise limited by traditional judicial review,[38] against a competing line of reasoning in that same court that frowned on such practices,[39] Gascon J, ruled that with regard to the state’s duty of neutrality on the question of religion itself, “I am of the opinion that, in this case, the Court of Appeal properly applied the correctness standard on this question.”[40] Subsequently, with regard to the remaining questions and indeed the entirety of the case, he then used a different line of Supreme Court cases and reasoning,[41] to conclude as follows:

“However, it was not open to the Court of Appeal to apply that standard to the entire appeal and to disregard those of the Tribunal’s determinations that require deference and are therefore subject to the reasonableness standard. For example, the question whether the prayer was religious in nature, the extent to which the prayer interfered with the complainant’s freedom and the determination of whether it was discriminatory fall squarely within the Tribunal’s area of expertise. The same is true of the qualification of the experts and the assessment of the probative value of their testimony, which concerned the assessment of the evidence that had been submitted. The Tribunal is entitled to deference on such matters. The only requirement is that its reasoning be transparent and intelligible. Its decision must be considered reasonable if its conclusions fall within a “range of possible, acceptable outcomes which are defensible in respect of the facts and law.[42] (Citations omitted). (Emphasis added).

Gascon J, also and unequivocally agreed that the Court of Appeal had properly concluded that it lacked jurisdiction to consider the religious symbols at issue,[43] because “where a complainant has a right to submit his or her own application to the Tribunal, the scope of the remedy is limited by the work done beforehand by the Commission. The Tribunal’s jurisdiction is circumscribed by that work. In a discrimination case, the application to the Tribunal is intended to be an extension of the investigation conducted by the Commission in response to a complaint.”[44] In essence, matters not considered, were unavailable for a later ruling by a court of review, because there was, essentially, nothing to review.

On the question of the prayer itself, and its discriminatory nature, Gascon J, stated the rule that, “[i]n a case such as this, the practice of reciting the prayer and the By-law that regulates it result in the exclusion of Mr. Simoneau on the basis of a listed ground, namely religion. That exclusion impairs his right to full and equal exercise of his freedom of conscience and religion.”[45] From there, he further stated that, “[f]or the purposes of the protections afforded by the charters, the concepts of “belief” and “religion” encompass non-belief, atheism and agnosticism.[46]

Defining the scope and impact of the state’s duty of neutrality per se, which promotes “diversity and multiculturalism[47] and remains “based on a democratic imperative[48], Gascon J, iterated that:

By expressing no preference, the state ensures that it preserves a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally. I note that a neutral public space does not mean the homogenization of private players in that space. Neutrality is required of institutions and the state, not individuals (…).[49]

He further took issue with the conclusion at the Court of Appeal that perfect neutrality must bow to “benevolent neutrality”,[50] due to certain historical and cultural precedents, wherein he stated that,

If the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality. If that religious expression also creates a distinction, exclusion or preference that has the effect of nullifying or impairing the right to full and equal recognition and exercise of freedom of conscience and religion, there is discrimination.[51]

Gascon J, also found that the Oakes balancing test applied to any analysis of section 9.1 of the Quebec Charter of Human Rights and Freedoms,[52] – as equivalent to section 1 of the Canadian Charter of Rights and Freedoms,[53] when the offending Saguenay prayer and Bylaw were considered against that section 9.1. Even then, though, neither prayer nor Bylaw could be saved from invalidity under such analysis,[54] and the Quebec Court of Appeal had also erred in finding the Tribunal’s qualification of Simoneau’s expert improper.[55]

On a final note, Gascon J, distinguished the instant case from Allen v. Renfrew County,[56] an Ontario case wherein a similar prayer recitation by council was deemed not to be an infringement of the rights of others.[57] He further distinguished between abstaining from religion (which he deems true neutrality), and taking a stance for atheism and/or agnosticism (which he deems unbelief); writing at paragraph 133:

A practice according to which a municipality’s officials, rather than reciting a prayer, solemnly declared that the council’s deliberations were based on a denial of God would be just as unacceptable. The state’s duty of neutrality would preclude such a position, the effect of which would be to exclude all those who believe in the existence of a deity.”[58]

Then, however, Gascon J, hurriedly dismissed both the strong Allen precedent and the Freitag obiter from the Court of Appeal for Ontario as inapplicable, on the ground that the latter decision “does not close the door on the application of the justificatory provision”, which provision the Tribunal in the instant case had deemed of no recourse.[59] Also declining to consider the prayer practices of the House of Commons – citing a lack of evidence before it on the purpose of the prayer and speculating that it might, nevertheless, be protected by Parliamentary privilege, Gascon J, concluded in addition that “it would be inappropriate for the Court to discuss its content or to use it to support a finding that the City’s prayer is valid.[60] Further, regarding the Charter preamble which reads: “[w]hereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:[61], that is a mere articulated ““political theory”” underlying those Charter protections.[62]

“Thus, the reference to God in the preamble cannot be relied on to reduce the scope of a guarantee that is expressly provided for in the charters.”[63]

From that point onwards, the Court’s conclusions stand out as worthy of note. For example, the Tribunal’s ultra vires declaration of invalidity (“inoperative and invalid”) with regard to the offending bylaw, was also amended, retroactively, and read-down, to be a simple declaration of inoperability.[64] Then, the Tribunal’s compensatory damages award, although based on admittedly improper grounds, was also left to stand.[65] In addition, although conceding with regard to the Tribunal’s punitive damages, “that in civil law such damages are an exceptional remedy”,[66] the Tribunal’s award of same was left to stand without any consideration of the Supreme Court’s own longstanding test for such awards that was annunciated in Whiten.[67] Instead, the Court chose to follow (and affirm) the Tribunal’s reliance for its punitive damages award on de Montigny v. Brossard (Succession), 2010 SCC 51 (CanLII), [2010] 3 SCR 64 – which distinguished Whiten at its own paragraph 54,[68] and Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, 1996 CanLII 172 (SCC), [1996] 3 SCR 211 – which preceded Whiten in time by a full 6 (“six”) years but gave the test for “punitive damages” – being in the court’s discretion as opposed to mandatory, in cases alleging violation of the Quebec Charter.[69]

An onlooker may be excused for feeling that the offending conduct was stretched to fall within the test. To whit, the law states: “[i]n case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.”[70]

Whereas, the cited case provided – and I think it useful to recite the entire paragraph, that:

Consequently, there will be unlawful and intentional interference within the meaning of the second paragraph of s.49 of the Charter when the person who commits the unlawful interference has a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct, or when that person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause. This test is not as strict as specific intent, but it does go beyond simple negligence. Thus, an individual’s recklessness, however wild and foolhardy, as to the consequences of his or her wrongful acts will not in itself satisfy this test.”[71] [Emphasis added].

Efforts by the mayor and council to comply with the law by amending the prayer and procedures around it to more closely follow apparently good caselaw, can hardly be seen as “unlawful and intentional interference”. The mayor’s boasts alone, showing his state of mind and intent to exercise his own rights to religious freedom, although admittedly “wild and foolhardy” for someone in his position, can hardly be elevated to any desire or intent to cause harm to Simoneau.

SHADOW IMPLICATIONS:

This decision clearly puts an end to overtly religious prayer, in public, before or during council meetings across Canada. However, like-minded councilors may still pray together on their own before entering the council chambers, and it is arguable that non-denominational prayers may still be acceptable – for now. Moments of silence appear to be fine, providing that there are no religious outbursts or cries of “Amen”, that would put such silence practices into disfavor, disrepute, or suspected lack of neutrality.

Does the Saguenay case explicitly overrule Allen (prayer, even if Christian, can be allowed in certain cases)? I would say yes! Does the Saguenay case invalidate Freitag’s obiter (non-denominational prayers might still be allowed, in certain cases and with proper safeguards)? I would say almost! The Supreme Court will likely wait until another case puts that practice squarely within its pleas for relief.

It would seem that freedom OF religion has now become freedom FROM religion under Canadian caselaw and Human Rights Codes. However, this wholesale move towards total religious neutrality puts Canada on a very slippery slope in the overly broad shadow now cast across all faiths by the decision. I will illustrate the potential reach of this “total religious neutrality” shadow in a series of hypothetical questions, backed by selected, additional quotations from the Supreme Court’s decision.

Generally:

  1. Will there come a time when no public official can mention, be seen to publicly celebrate or endorse, or even wish Canadians a “blessed”, or simply a “happy” Christmas Day, Boxing Day, Good Friday, or Easter Monday (Christianity), as it would interfere with the state’s duty of religious neutrality? This quagmire may also extend to other major faiths, banning or hindering participation in all prayers at or regarding, and all support (conceivably one day including financial support of cultural groups that may be used for religious activities, or cultural events with a religious context), including but not limited to Yom Kippur and Hannukah (Judaism), Diwali and the Hindi, Bengali, and Tamil New Years (Hinduism), Eid-al Fitr and Eid-al-Adha (Islam), and the Chinese New Year (Buddhism)? Will all Canadians be relegated to celebrating only the non-denominational Kwanza in December, or will that, too, be lost?

“This being said, it must be recognized that the Canadian cultural landscape includes many traditional and heritage practices that are religious in nature. Although it is clear that not all of these cultural expressions are in breach of the state’s duty of neutrality, there is also no doubt that the state may not consciously make a profession of faith or act so as to adopt or favour one religious view at the expense of all others.”[72] [Emphasis added].

  1. Will any adherent of any specific theistic faith be discouraged from participating in the rites and rituals of his or her own faith, just because they hold public office? It is, after all, the duty of politicians to “relate to” and otherwise “participate in” the daily lives and cultures of their constituents, to the extent able. Is engaging in a political campaign an “official duty” or “official function” of a political incumbent or aspirant?

“Where state officials, in the performance of their functions, profess, adopt or favour one belief to the exclusion of all others, the first two criteria for discrimination mentioned above, namely that there be an exclusion, distinction or preference and that it be based on religion, are met.”[73] [Emphasis added].

  1. Will this religious neutrality discourage the holders of sincere religious beliefs, from competing for or accepting public office, due to the restrictions that this would pose on their personal beliefs? The multiplicity of faiths in Canada means that not all can be accommodated during political and election season. Hence, some will be omitted and thus appear to be disfavoured, and those included might therefore appear to be favoured.

“The state, I should point out, does not have a freedom to believe or to manifest a belief; compliance with its duty of neutrality does not entail a reconciliation of rights. On the other hand, it goes without saying that the same restrictions do not apply to the exercise by state officials of their own freedom of conscience and religion when they are not acting in an official capacity. Although they are not entitled to use public powers to profess their beliefs, this does not affect their right to exercise this freedom on a personal basis.”[74] [Emphasis added].

  1. Will we witness a banning or blue-penciling (re-writing to conform to law) of the oaths and affirmations of the myriad professional bodies that refer to God or gods, simply because these licensing bodies take their self-regulatory powers from the state, and must therefore also be religiously neutral?
  1. How soon, until the very books of faith, are banned outright from public spaces, or simply excluded as the “hitherto devoid of religion” basis for taking any firm oath or making any binding affirmation in Canada’s courts and tribunals, and during the swearing-in ceremonies for public officials and lawyers?
  1. How many intentional practices, incidental government services, or implicitly personal actions will be curtailed due to the fact that they may, somehow, promote or favour one of the many possible faiths?

Europe:

  1. Will Canada move further along this spectrum to follow the European examples (Belgium, France, Germany, and Spain) of banning religious symbols, clothing, and practices in schools and public places? What, if any, will be the difference in treatment between a headscarf, a turban, a skull cap, prayer beads, a rosary, a kirpan,[75] and a crucifix; and who will have the final say?[76]
  1. What will be the effects on internationally guaranteed religious and cultural freedoms to which a multicultural Canada has acceded by its membership in global institutions, and its ratification of global treaties and accords that touch and concern human and cultural rights?[77]
  1. How – with the highest court in the land now having passed its judgement and short of taking a case outside Canada, can any Canadian Citizen or resident of sincere faith seek recourse and recompense for national and provincial violations of international law, with respect to their freedoms of religion, conscience, cultural enjoyment, and speech or expression in an “officially” multicultural Canada?
  1. With the rise of new faiths (such as Kopimism),[78] can atheism somehow or someday be deemed and construed as a religion, and therefore brought under that same rubric of laws constraining the others?[79]
  1. Is Canada, wittingly or unwittingly, setting itself up for intermittent and/or interminable religious conflict(s)?  Thoughts and prayers are often invoked in the case of any disaster around the world.  Will this phrase, also, soon be a relic?

CONCLUSION:

These are all hard questions to answer, today. However, as time progresses, we may see some or all of them answered in Canada’s Human Rights Tribunals, and courts of first and later review. This downhill snowball is now rolling, and gaining both speed and mass. If care is not taken, we’ll all face the choice to live (or leave) with its end-results – whether devastating, or neutral, or devastating in their neutrality.

*****************************************************************

Author:

Ekundayo George is a lawyer and sociologist.  He has also taken courses in organizational and micro-organizational behavior, and gained significant experiences in regulatory compliance, litigation, and business law and counseling.  He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy.  He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams.  Team consulting competencies have included program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT). See, for example: http://www.simprime-ca.com.

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[1] Reading in alphabetical order, these roughly 3 (“three”) dozen mainstream faiths would include the Ahmadiyya, Amish, Anglican, Ayyavazhi, Baha’i, Baptist, Buddhist, Catholic, Confucian, Coptic, Druze, Hindu, Eastern Orthodox (itself comprising some 18 independent denominations), Ethiopian Orthodox, Evangelical, Ismaili, Jain, Jewish, Lutheran, Mennonite, Methodist, Pentecostal, Rastafarian, Seventh Day Adventist, Shia, Shinto, Sikh, Sufi, Sunni, Tao, Rastafarian, Yazidi, Zaydi, and Zoroastrian.

See Wikipedia. Eastern Orthodox Church. Online: <http://en.wikipedia.org/wiki/Eastern_Orthodox_Church>

[2] These include Aum Shinkriyo, Cargo Cults, Falun Gong, Hare Krishna, Satanism, Vodun, Wicca, and even Kopimism which I wrote about in an earlier post. See e.g. Ekundayo George. Freedom of Religion in a Networked World – New Rivers to Cross? Posted February 5, 2012, on ogalaws.wordpress.com. Online: < https://ogalaws.wordpress.com/2012/02/05/freedom-of-religion-in-a-networked-world-new-rivers-to-cross/>

[3] Traditional beliefs range from ancestor worship, through the veneration of spirits and natural phenomena (popular amongst the First Americans, the Peoples of all parts of Africa and Europe, and the Peoples of Asia and the Pacific) that still prevail to this day despite significant inroads made by those above mainstream religions. Countless examples abound that include Asatru, Candomble, Druidism, Ifa, Lukumi, Macumba, Mugyo, Santeria, Shamanism, Shenism, and Famadihana (which is the ritual exhumation and reburial of the dead). Additional, “new age” faiths would include the Nation of Islam, Rajneesh Movement, Scientology, Unificationism (Moonism), and certain forms of Yoga and Transcendental Meditation.

[4] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, File No.: 35496 (judgement released April 15, 2015). Online: <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15288/index.do> This was a supermajority decision of 8 (“eight”) Justices of the Supreme Court of Canada, with the ninth and last Justice concurring.

[5] Indeed, to recognize Atheism as a functioning, fellow faith flower takes away this kind of power that it has to detour around and devour others. Perhaps this is a path worthy of pursuit.

[6] Government of Quebec. Charter of Human Rights and Freedoms. R.S.Q., chapter C-12.

Online: <http://www.canlii.org/en/qc/laws/stat/rsq-c-c-12/latest/rsq-c-c-12.html> Relevant provisions follow.

PART I: HUMAN RIGHTS AND FREEDOMS

CHAPTER I: FUNDAMENTAL FREEDOMS AND RIGHTS.

Fundamental freedoms

  1. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.

1975, c. 6, s. 3.

9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.  1982, c. 61, s. 2.

CHAPTER I.1: RIGHT TO EQUAL RECOGNITION AND EXERCISE OF RIGHTS AND FREEDOMS

  1. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.  1975, c. 6, s. 10; 1977, c. 6, s. 1; 1978, c. 7, s. 112; 1980, c. 11, s. 34; 1982, c. 61, s. 3.

10.1. No one may harass a person on the basis of any ground mentioned in section 10.  1982, c. 61, s. 4.

  1. No one may distribute, publish or publicly exhibit a notice, symbol or sign involving discrimination, or authorize anyone to do so. 1975, c. 6, s. 11.
  1. No one may, through discrimination, inhibit the access of another to public transportation or a public place, such as a commercial establishment, hotel, restaurant, theatre, cinema, park, camping ground or trailer park, or his obtaining the goods and services available there. 1975, c. 6, s. 15.

CHAPTER IV: ECONOMIC AND SOCIAL RIGHTS

  1. Every person has a right to information to the extent provided by law. 1975, c. 6, s. 44.

CHAPTER V: SPECIAL AND INTERPRETATIVE PROVISIONS

Recourse of victim for unlawful interference.

  1. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

Punitive damages.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.  1975, c. 6, s. 49; 1999, c. 40, s. 46.

PART II: COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE

CHAPTER III: COMPLAINTS

  1. The commission may also apply to a tribunal for any appropriate measure against any person who attempts to take or takes reprisals against a person, group or organization having an interest in the handling of a case of discrimination or exploitation or having participated therein either as the victim, the complainant, a witness or otherwise.

The commission may, in particular, request the tribunal to order that, on such date as it deems fair and expedient under the circumstances, the injured person be instated in the position or dwelling he would have occupied had it not been for the contravention.  1975, c. 6, s. 82; 1989, c. 51, s. 5.

[7] Constitution Act 1982. PART I: CANADIAN CHARTER OF RIGHTS AND FREEDOMS.

Enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), which came into force on April 17, 1982.  Online: <http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-44>

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

GUARANTEE OF RIGHTS AND FREEDOMS

Rights and freedoms in Canada

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental freedoms

  1. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

[8] Supra note 4.

[9] Supra note 5.

[10] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, File No.: 35496 (judgement released April 15, 2015). Online: <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15288/index.do> at para. 9-10. Simoneau had also been joined in his complaint to the Commission by the MLQ. See Infra, note 12 herein and accompanying text.

[11] Id. The Bylaw was règlement vs-r-2008-40, city of Saguenay, November 3, 2008.

[12] Id.

[13] See Simoneau c. Tremblay, 2011 QCTDP 1, [2011] R.J.Q. 507, [2011] AZ-50722559, [2011] Q.H.R.T.J. No. 1 (QL), 2011 CarswellQue 7400 (WL Can.) Decision issued February 9, 2011. Online: <http://www.soquij.qc.ca/decisions/fr/50722559_an-1.doc> [Emphasis added]. *Original and quoted versions differ due to translation.

“[250] […] Given the findings resulting from the analysis of the religious nature of the prayer and the symbols, the Tribunal is of the view that the use of public power in order to display or convey a particular faith has the effect of imposing values and religious beliefs and practices on people who do not share them. In so doing, the City and the Mayor are favouring one religion over another, whereas under its duty of neutrality, the State should refrain from intervening such that a preference is exercised.”

“[251]     The reciting of a prayer and the exhibiting of religious symbols in the state-controlled space constituted by the meetings of the municipal council, where representatives of the people discuss questions of public interest, also have a non-trivial exclusionary effect that substantially stigmatizes people who do not share those values. As expert Baril indicated in his report and testimony, the fact that people are exposed against their will to symbols and symbolic representations, through an identity ritual such as the reciting of the prayer, makes that religious practice coercive, since the only way around it is to be physically or symbolically excluded.”

[252]      The religious content of the bylaw thus sends religious minorities and atheists the message that, in the public sphere, there is still a gap between them and the dominant religious culture conveyed by the political authorities. In Freitag, the Court of Appeal for Ontario concluded that the fact that a person must comply with the beliefs of the majority is a subtle and constant reminder of his or her difference from the majority: […]

[14] Id. [Emphasis added]. *Original and quoted versions differ due to translation.

“[210]     Moreover, as the Tribunal pointed out in Laval, it has been well established in the jurisprudence that [TRANSLATION] “the basic freedom that constitutes the freedom of religion and conscience compels the state to be neutral”. Owing to that obligation, the state authority cannot, because of its collective nature, make use of the power it exercises in order to promote the personal religious beliefs of the individuals who perform political functions, without interfering in a manner that is more than trivial or insubstantial in the right to the free exercise of religious belief or conscience.”

“[225]     For the following reasons, the Tribunal concludes that the reciting of the prayer at public Ville de Saguenay meetings and the presence of religious symbols in the rooms where the meetings are held impair Mr. Simoneau’s right to full and equal recognition of his freedom of conscience and religion without discrimination based on religion, namely, his right not to be subjected to, or forced to hold, a conviction or engage in a religious practice he does not believe in during public meetings led by people representing the political authority in the exercise of their duties.”

“[301] Due to the very nature of the freedom that the right to equality is combined with here, no accommodation would be able to actually guarantee the religious equality of the citizens. When the right to equality is combined with the State’s duty of religious neutrality, the duty to provide reasonable accommodation arises as a negative requirement that is unique in its ability to ensure, in such a context, the equality of all in the exercise of freedom of conscience and religion. Therefore, to ensure the religious equality of all citizens, regardless of their beliefs in this area, State officials gathered together for a political meeting held in a public space cannot fulfill their legal obligations other than by completely abstaining from praying and displaying religious symbols.”

[15] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), [2013] R.J.Q. 897, 363 D.L.R. (4th) 62, 76 C.H.R.R. D/430, [2013] AZ-50969282, [2013] Q.J. No. 5220 (QL), 2013 CarswellQue 7596 (WL Can.) Court of Appeal Case No.: No.: 200-09-007328-112 (150-53-000016-081). Decision issued May 27, 2013. Online: <http://www.canlii.org/en/qc/qcca/doc/2013/2013qcca936/2013qcca936.pdf>

[16] Id. at 59.

[17] Id. at 88.

[18] Id. at 94.

[19] Id. at 100.

[20] Id. at 102.

[21] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), at 106, 108.

[22] Id. at 115.

[23] Id. at 125.

[24] Id. at 130. See also para. 131.

[25] Id. at 152. See also Infra, note 29, 2015 SCC 16 at 116-17.

[26] Id. at 164.

[27] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), at 170.

[28] Id. at 132.

[29] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16.

[30] Id. at 6.

[31] Id. at 7.

[32] Id. at 12.

[33] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), at 35, 37.

[37] “The issue in this appeal deals primarily with the religious neutrality of the State. It is a matter of importance to the legal system over which the Tribunal does not have exclusive jurisdiction. Given the nature of the principal issue raised in this case and the consequences that its response entails, I find that there is no need to pay any particular deference to the expertise of the Tribunal. It is thus according to the standard of review of correctness that this appeal must be must be decided.” (sic) [Emphasis added].

[34] Id. at 49.

[35] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 29.

[36] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[37] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 33.

[38] Coutu v. Tribunal des droits de la personne, [1993] R.J.Q. 2793 (C.A.).

[39] Commission scolaire Marguerite-Bourgeoys v. Gallardo, 2012 QCCA 908, [2012] R.J.Q. 1001, at paras. 47-51.

[40] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 49.

[41] Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 47, 54-55, 60; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (“Mowat”), at para. 23); and Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at paras. 14-15.

[42] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 50.

[43] Id. at 53, 61.

[44] Id. at 57.

[45] Id. at 64.

[46] Id. at 70.

[47] Id. at 75.

[48] Ibid.

[49] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 74.

[50] Id. at 77.

[51] Id. at 78.

[52] See Supra, note 6.

[53] See Supra, note 7.

[54] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 89-90. Indeed, the Supreme Court found at paragraph 100, that neither the old prayer alone, nor the new prayer with the Bylaw, could pass as non-religious, or religious but being of minimal interference with the rights of S, as they were far too religious and far too public. Indeed, at paragraph 101, the Supreme Court further found the Bylaw’s addition of two minutes that allowed those not in favour of staying for the prayer to exit the chamber “highlights the exclusive effect of the practice.”

[101] “(…) although the wording was modified somewhat by the By-law as of 2008, the new wording changed neither the nature nor the substance of the prayer. Both wordings constituted an invocation to God, attributing benefits enjoyed by the City and its citizens to him, and asking him to guide the council’s deliberations. (…) These recitals from the preamble show that the prayer was intended as support by the City for the religion professed by individual councillors.” 2015 SCC 16, at 100.

[55] Id. at 109.

[56] Allen v. Renfrew County, 2004 CanLII 13978 (ON SC), at 27, 69 O.R. (3d) 742, [2004] O.J. No. 1231. Online: <http://www.canlii.org/en/on/onsc/doc/2004/2004canlii13978/2004canlii13978.html>

[27] “The prayer in its present form is not in substance a religious observance, coercive or otherwise and it does not impose any burden on the applicant or any restriction on his exercise of his own beliefs. The recital of this prayer does not compel the applicant, in contrast to Freitag, to participate in a Christian or other denominational form of worship. The mere mention of God in the prayer in question is not in this court’s opinion, sufficient in its effect on the applicant to interfere in any material way with his religious beliefs.” 2004 CanLII 13978, at 27.

Allen v Renfrew had itself, been preceded by a ruling striking-down council prayer by the Court of Appeal for Ontario, which stated that a “non-denominational” prayer (similar, perhaps, to the one recited in the House of Commons) might have passed the section 1 balancing test of the Charter. See e.g. Freitag v. Penetanguishene (Town), 1999 CanLII 3786 (ON CA), at 51-52, 47 OR (3d) 301; 179 DLR (4th) 150; [1999] OJ No 3524 (QL). Online: <http://www.canlii.org/en/on/onca/doc/1999/1999canlii3786/1999canlii3786.html>

[57] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 127.

[58] Id. at 133, 134.

[59] Id. at 140.

[60] Id. at 144, 143.

[61] Constitution Act 1982. PART I: CANADIAN CHARTER OF RIGHTS AND FREEDOMS, Preamble.

Enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), which came into force on April 17, 1982.  Online: <http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-44>

[62] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 147.

[63] Id. at 148.

[64] Id. at 151-154.

[65] Id. at 160.

[66] Id. at 161.

[67] Whiten v. Pilot Insurance Co., [2002] 1 SCR 595, 2002 SCC 18 (CanLII). Online: <http://www.canlii.org/en/ca/scc/doc/2002/2002scc18/2002scc18.html?autocompleteStr=whiten%20v.%20&autocompletePos=1>

[68] de Montigny v. Brossard (Succession), [2010] 3 SCR 64, 2010 SCC 51 (CanLII). Online: <http://www.canlii.org/en/ca/scc/doc/2010/2010scc51/2010scc51.html?autocompleteStr=2010%20scc%2051&autocompletePos=1>

[69] Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, 1996 CanLII 172 (SCC), [1996] 3 SCR 211. Online: <http://www.canlii.org/en/ca/scc/doc/1996/1996canlii172/1996canlii172.html>

[70] Supra note 6. Quebec Charter of Human Rights and Freedoms, at section 49. R.S.Q., chapter C-12. Online: <http://www.canlii.org/en/qc/laws/stat/rsq-c-c-12/latest/rsq-c-c-12.html>

[71] Supra note 69. Quebec (Public Curator) v. Syndicat national, 1996 CanLII 172 (SCC), [1996] 3 SCR 211, at para. 121.

[72] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 87.

[73] Id. at 84.

[74] Id. at 119.

[75] But see contra, Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256, 2006 SCC 6 (CanLII). Online: <http://www.canlii.org/en/ca/scc/doc/2006/2006scc6/2006scc6.html>

In that now dated case, the Supreme Court of Canada ruled that the ban by a Quebec school authority on the carrying of kirpans by non-violent adherents of the Sikh faith, would violate section 2(a) – freedom of conscience and religion, of the Canadian Charter of Rights and Freedoms. It is now questionable whether this decision will be left to stand.

[76] See generally Human Rights Watch. Questions and Answers on Restrictions on Religious Dress and Symbols in Europe. Posted December 22, 2010, on hrw.org. Online: <http://www.hrw.org/news/2010/12/21/questions-and-answers-restrictions-religious-dress-and-symbols-europe>

[77] Ibid. Fuller treatment of potentially impacted international rights and freedoms is beyond this limited blog post.

[78] Ekundayo George. Freedom of Religion in a Networked World – New Rivers to Cross? Posted February 5, 2012, on ogalaws.wordpress.com. Online: <https://ogalaws.wordpress.com/2012/02/05/freedom-of-religion-in-a-networked-world-new-rivers-to-cross/>

[79] See generally supra note 5, and accompanying text.

In his letter to shareholders that accompanied the 2014 annual report for Omaha, Nebraska’s sprawling Berkshire Hathaway Inc., Warren Buffet, the longtime chairman and chief executive officer, stated that he had chosen a successor, predicted potentially tougher times ahead in the quest for growth at the company, and identified 3 (“three”) historically recurrent business challenges that could fell even the oldest and largest of businesses:

 

“My successor will need one other particular strength: the ability to fight off the ABCs of business decay, which are arrogance, bureaucracy and complacency. When these corporate cancers metastasize, even the strongest of companies can falter. The examples available to prove the point are legion (…)” (Emphasis added).[1]

 

As shown in my May, 2014 post on corporate crisis management,[2] there are a whole host of “issues” that can befall a company, and severely damage or even destroy it if not properly addressed or prevented in the first instance. I would therefore not only echo Mr. Buffett on these three potential maladies that he has identified, but add 6 (“six”) more that I have repeatedly seen in my work experience and research, to total 9 (“nine”) such avoidable agents of business decay.

 

These other six, are:

  1. Debt;
  2. e-Issues (eCommerce, the environment, employment practices);
  3. Fiscal and Competitive Malfeasance (tax evasion, fraud and financial statement/disclosure issues, market abuses);
  4. GRC (governance, risk, and compliance) Failings;[3]
  5. Hue & Cry” (public reaction – including social media campaigns, boycott calls, and general “sanction or reaction traction” with regulators or prosecutors regarding an adverse event involving the company;
  6. i-Issues (most commonly being – incomplete or inappropriate preparation for surging demand, shoddy or absent contingency planning, insufficient capitalization, unreliable or skittish funding sources, and inattention to ongoing management obligations especially in supply chain quality control and general logistics, operations safety and security including cybersecurity, outsourcing and vendor competence and regulatory compliance, and oversight of all of these to include an adequate, available, and recommended internal whistleblower apparatus, and enforcing strict information governance and document retention policies).

 

A review of recent and historic business news will yield more than enough examples for each and every point, and so I will not go out of my way to name names. Suffice it to say, that if you want real business longevity for your venture – regardless of its current stage or state, then as with everything else, you need to look far beyond, and cover much more, than the mere basics or the ABC’s, and consistently so.

 

*****************************************************************

Author:

Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experiences in business law and counseling, diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT). See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

[1] Warren Buffet. Letter to Shareholders for Fiscal Year 2014, at page 37.  Posted on berkshirehathaway.com, February 2015. Online: <http://www.berkshirehathaway.com/letters/2014ltr.pdf>

See also Luciana Lopez and Jonathan Stempel.  Warren Buffett says Berkshire has ‘right person’ as heir.

Posted on reuters.com, February 28, 2015.  Online: <http://www.reuters.com/article/2015/02/28/us-berkshire-buffett-letter-idUSKBN0LW0MG20150228>

[2] Ekundayo George. Corporate Crisis Management 101 – The A, B, Cs of Lessons Learned.  Posted on ogalaws.wordpress.com, May 7, 2014. Online: <https://ogalaws.wordpress.com/2014/05/07/corporate-crisis-management-101-the-a-b-cs-of-lessons-learned/>

[3] Ekundayo George. Governance, Risk, and Compliance (GRC): a 4-part policy framework. Posted on ogalaws.wordpress.com, October 21, 2012. Online:<https://ogalaws.wordpress.com/2012/10/21/grc-an-overview-part-1/>

Looking back to 2013, I had predicted the 5 top technology trends (specifically for consumers) in that year, to be:

(i) Accelerated lived experience;

(ii) Bring Your Own Device (BYOD);

(iii) Crowdsourcing;

(iv) Distance education; and

(v) End-User legal authority/license autonomy/leveraged ability (EULA3). [1]

These pretty much held true, and even lasted both into and through 2014. The pace of instantaneous news, social tweets and alerts, and all manner of reality TV from financing pitches, through entire shows that are literally “celebrity selfie-cams”, to instantaneous gratification through crowd sourcing of funding, business and consumer information, and general gossip, have created this ever accelerating lived experience. Ever greater sales of handheld devices have forced employers to draft BYOD policies for employees too attached to their own devices to let them go, and all manner of distance education is now available for a fee, or for free in the ever-expanding offerings of Massive Open Online Course (MOOC).[2] As well, immersive gaming, as it develops with optional story lines, the move to taking software bits as building blocks for people to create their own widgets and full applications, and the myriad of customizable self-help, professional, and practical document templates available online, taken together, will only further speed EULA3.[3]

Fully justified then (and thankfully so) in my predictions, let us now move on to 2015-16, then. Here, in the midst of technology and its relentless forward motion, all I see – is “Paper”! This stands for:

Personalization;

A3 (aggregation, analytics, and advising);

Protection;

eMoney; and

Remoting. We will consider them in turn, and in that order.

Personalization:

Whether it is widgets, backgrounds, wallpapers, icons, ringtones, and home screen layouts of the ipod, android, iphone, desktop, laptop, or tablet,[4] personalization and customization are all the rage for maximizing the user-centric experience.

“The constantly connected consumers of today are extremely savvy, using all available channels and devices to research, review, compare prices and ultimately purchase products. Basic personalization (such as name and account personalization and dynamic interest or product content) no longer serves consumers’ demand for deeper levels of real-time personalized information. Increasingly, these savvy consumers are taking their business to companies that provide more than basic personalization and automated lifecycle campaigns. Customers now prefer brands that deliver individualized experiences that match their needs in the present moment”.[5]

Even giants of the online world, such as Yahoo,[6] have now realized that the way to truly reach and engage your customer, it to intimately know your customer for and through, “Real-time Marketing[7] and personalization practices. Personalization is based on gathering and analyzing observation data, to analyze and make predictions based upon what you know. This is why A3, which underlies real-time marketing, will also be a top trend for 2015-16, in my prediction.

A3 (Aggregation, Analytics, and Advising):

The SAS Institute, Inc., put out a 2013 white paper on demand sensing and shaping through big data analytics,[8] which perfectly sums-up the first stage of the real-time marketing process. In the second stage, I would add demand supporting and serving, which sustains that demand in existence by providing those cues to trigger it (familiarity, emotional advertising triggers, positive associations in product placement, and so forth), and thence return customers to your established, satisfaction-source.

Big Data (and its means of collection)[9] do have other applications beyond the pure consumer, however. These include generic disaster management applications,[10] and estimating or better “guess”-timating the true incremental and future impacts of climate change on humans and the environment.[11]

Protection:

With all of this data and its very many faces,[12] along with the potential to gather and analyze it, and the undisputed value of the end result in the predictive analytics space, there is a growing need at all levels, for more robust protective mechanisms – wherever it falls on the spectrum of privacy practices,[13] data governance and document preservation, or cybersecurity. IT in general, is looking forward to a banner year in 2015.[14] The IT security sub-sector, for its part, is not too far off, either, with a spate of increasingly spectacular, recent[15] and historical[16] hacks and cyberattacks drawing the attention of the risk management industry,[17] regulators,[18] private businesses,[19] and concerned citizens in an ongoing and multi-sided tussle,[20] both amongst themselves and with criminal elements. A very large data breach was just disclosed at Anthem Inc. (a health insurer with operations across 14 states), in which up to 80 million records of Personally Identifiable Information (PII) – but apparently no Personal Health Information (PHI), according to initial evaluations – are suspected to have been compromised.[21]

eMoney:

Despite the dangers and concerns, however, the pace of progress continues to pick-up, with electronic payments of the Paypal variety moving to Square and eMoney, in the largely unregulated (and hacked)[22] Bitcoin, and the more mainstream proposed and competing offerings of CurrentC from the Merchant Customer Exchange (MCX) – which was also hacked,[23] and Google Wallet, Softcard, and Apple Pay.

Remoting:

With ever-more personalized experiences being available through more and more interconnected devices, we are moving towards an Internet of Things (IoT) that raises even more cybersecurity concerns that now include remote access and remote control/takeover,[24] whether or not authorized or even traceable back to source.[25] This has led one commentator to describe this future state as the “Internet of Bad Things”.[26] Going further to consider the impetus for a change in our security mindset, consider the words of Dr. Arati Prabhakar, the director of the United States Defence Advanced Research Projects Agency (DARPA), when she said:

“The largest explosion of millisecond machine actions will take place when billions of IoT devices are deployed. Until we find a way to authenticate, view, audit, analyze and block IoT devices often connected to cloud computing, we frankly shouldn’t be putting IoT out there. As the security industry saying goes, “money trumps security,” and as increasingly more of these IoT product (sic) are released, cybersecurity will just be playing catch-up. With potentially billions of these devices being deployed all over the world, this could lead to a cyber attack free-for-all of catastrophic proportions.”[27]

However, remoting is not all doom and gloom. Witness the growing use of crowdfunding to raise money for important events, popular initiatives, or proposed or emerging or growing business ventures; and even the burgeoning business of “pay to watch” that has now gone from the original voyeur cams, through specialized YouTube channels where you can pay to watch people play video games,[28] or modern day South Korea, where people will pay to remotely watch someone – a “broadcast jockey” – do something as mundane as eating.[29] Drones, scene capture devices, and wearable devices in ever-lighter cameras (from glass and its successors, through GoPro, police cam, dash cam, spy cam, home surveillance, commercial and industrial surveillance, government surveillance, and mobile devices in any and all form factors now known or yet to come, and from the clunky to the micro- or nano-scale), will combine[30] to bring more, and ever uniquer, shareable, monetizable remoting experiences to come![31]

CONCLUSION

These then, are my PAPER predictions for technology in 2015-16 – Personalization, A3 (aggregation, analytics, and advising), Protections, eMoney, and Remoting. I think they will come to fruition, just as predicted, but we have to wait and see. Enjoy the view!

*****************************************************************

Author:

Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experiences in business law and counseling, diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT). See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

[1] Ekundayo George. Ctrl-Shift-Del: 2013’s Top 5 Technology Trends for Consumers. Posted March 16, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/03/16/ctrl-shift-del-2013s-top-5-technology-trends-for-consumers/<

[2] Wikipedia.org. Massive Open Online Course (MOOC), a definition. Online: >http://en.wikipedia.org/wiki/Massive_open_online_course<

[3] Supra note 1.

[4] See e.g. selected Android personalization offerings, on display for download at the google store. Online:

>https://play.google.com/store/apps/category/PERSONALIZATION<

[5] Katrina Conn. Moving Beyond Basic Personalization to Real-Time Marketing. Posted January 7, 2014, on Clickz.com. Online: >http://www.clickz.com/clickz/column/2321243/moving-beyond-basic-personalization-to-real-time-marketing<

[6] Yahoo. The Balancing Act: Getting Personalization Right. Posted on yahoo.com. Online: >https://advertising.yahoo.com/Insights/BALANCING-ACT.html<

[7] Supra note 5. “Real-time marketing is the ongoing cycle of engagement, data management, analytical insights and optimization – performed continuously and immediately. In other words, it’s the streamlined management of data, transformed into actionable insight that is used to enhance your customer’s experience.”

[8] The SAS Institute. White Paper: Unlocking the Promise of Demand Sensing and Shaping Through Big Data Analytics – How to Apply High-Performance Analytics in Your Supply Chain. Published on idgenterprise.com, and visited February 2, 2015. Online: >http://resources.idgenterprise.com/original/AST-0112051_UnlockingPromise.pdf<

[9] Dennis Keohane. Aaron Levie, Box see drones and Internet of Things as data sources of the future. Posted September 23, 2014, on betaboston.com. Online: >http://betaboston.com/news/2014/09/23/aaron-levie-box-data-drones-internet-of-things/<

[10] See e.g. Robert A. Runge and Isabel Runge. Data-Driven Disaster Management. Posted October 29, 2014, on nextgov.com. Online: >http://www.nextgov.com/technology-news/tech-insider/2014/10/data-driven-disaster-management/97700/?oref=voicesmodule<

[11] See e.g. Chelsea Harvey. UN REPORT: Our Climate Change Future Is Terrifying And Emissions Need To Stop Completely As Soon As Possible. Posted November 4, 2014, on businessinsider.com. Online: >

http://www.businessinsider.com/un-climate-report-stop-all-greenhouse-emissions-2014-11

< ; See also Carl Zimmer. Ocean Life Faces Mass Extinction, Broad Study Says. Posted January 15, 2015, on nytimes.com. Online: >http://www.nytimes.com/2015/01/16/science/earth/study-raises-alarm-for-health-of-ocean-life.html?_r=0<

[12] Ekundayo George. The 100 “FACES” of Data: a 5-part Complex Systems Study (Part 1 – Form Factors). Posted November 1, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/11/01/the-100-faces-of-data-a-5-part-complex-systems-study-part-1/<

[13] Amber Hunt, The Cincinnati Enquirer. Experts: Wearable tech tests our privacy limits. Posted February 5, 2015, on usatoday.com. Online: >http://www.usatoday.com/story/tech/2015/02/05/tech-wearables-privacy/22955707/< In one of my earlier blogs (if updated), the “User-Generated Legality Issues” (UGLIs) created by these treasure troves of “quantified self” data available through wearable devices, would be “self-outing 104”.

See e.g. Ekundayo George. The Video Privacy Protection Act (VPPA) Amendment of 2012 – Self-Outing 103? Posted January 11, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/01/11/the-video-privacy-protection-act-vppa-amendment-of-2013-self-outing-103/<

[14] Steve Ranger. Bigger budgets, better tech: Why 2015 is a good year to be working in IT. Posted February 4, 2015, on techrepublic.com. Online: >http://www.techrepublic.com/blog/european-technology/bigger-budgets-better-tech-why-2015-is-a-good-year-to-be-working-in-it/?tag=nl.e101&s_cid=e101&ttag=e101&ftag=TRE684d531<

[15] Pedro Hernandez. Xbox Live, PSN Back Online After Holiday DDoS Attacks. Posted December 29, 2014, on eweek.com. Online: >http://www.eweek.com/security/xbox-live-psn-back-online-after-holiday-ddos-attacks.html< See also the comprehensive hacking and public shaming of Sony, through compromised emails.

[16] I referenced several of the more historical, spectacular hacks in this earlier blog post. Ekundayo George. Cybersecurity: Its not just about “B” for Bob, but also eCommerce, Structure, and Trust. Posted November 3, 2014, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2014/11/03/cybersecurity-its-not-just-about-b-for-bob-but-also-ecommerce-structure-and-trust/<

[17] Pinsent Masons (out-law.com), citing the Institute of Chartered Accountants in England and Wales (ICAEW).

Cyber risks evolving faster than business capabilities, says accountancy body. Posted October 30, 2014, on out-law.com. Online: >http://www.out-law.com/en/articles/2014/october/cyber-risks-evolving-faster-than-business-capabilities-says-accountancy-body/<

[18] Aliya Sternstein. Report: Agencies Aren’t Properly Vetting All Cyber Contractors. Published September 9, 2014, on nextgov.com. Online: >http://www.nextgov.com/cybersecurity/2014/09/agencies-contractor-employees-cyber-workforce/93620/<

[19] Aliya Sternstein. 97 Percent of Key Industries Doubt Security Compliance Can Defy Hackers. Posted July 10, 2014, on nextgov.com. Online: >http://www.nextgov.com/cybersecurity/2014/07/97-percent-key-industries-doubt-security-compliance-can-defy-hackers/88324/?oref=ng-relatedstories<

[20] See e.g. In the Matter of a Warrant to Search a Certain email Account Controlled and Maintained by Microsoft Corporation. Memorandum and Order of James C. Francis IV, United States Magistrate Judge, released April 25, 2014. 13 Mag. 3814, United States District Court for the Southern District of New York (SDNY). Online: >https://s3.amazonaws.com/s3.documentcloud.org/documents/1149373/in-re-matter-of-warrant.pdf<

Just reading through this decision, which from the first paragraph defines the complexity of this issue, shows the many interests, laws and policies, and considerations at stake in that constant tussle between individual rights and privacy, business interests (including the personalization push), and the mandates of law enforcement and national security – whether nationally and across borders, or when multiple nations do or claim to have a primary stake.

The further steps since taken in that ongoing effort by the United States government to access emails stored on servers that are physically located in Ireland, only further underline the complexities and interests at stake. See also Mark Scott. Ireland Lends Support to Microsoft in Email Privacy Case. Posted December 25, 2014, on bits.blogs.nytimes.com. Online:>http://bits.blogs.nytimes.com/2014/12/24/ireland-lends-support-to-microsoft-in-email-privacy-case/?_r=0&module=ArrowsNav&contentCollection=Technology&action=keypress&region=FixedLeft&pgtype=Blogs<

[21] Elizabeth Weise, USA Today. Massive breach at health care company Anthem Inc. Posted February 5, 2015, on usatoday.com. Online: >http://www.usatoday.com/story/tech/2015/02/04/health-care-anthem-hacked/22900925/<

[22] Zack Whittaker for Zero Day. Bitstamp exchange hacked, $5M worth of bitcoin stolen. Posted January 5, 2015, on zdnet.com. Online: >http://www.zdnet.com/article/bitstamp-bitcoin-exchange-suspended-amid-hack-concerns-heres-what-we-know/<

[23] Ryan Mac, Forbes Staff. Apple Pay Rival and Walmart-backed MCX Hacked, User Emails Snatched. Posted October 29, 2014, on forbes.com. Online: >http://www.forbes.com/sites/ryanmac/2014/10/29/apple-pay-rival-and-walmart-backed-mcx-hacked-user-emails-compromised/<

[24] Katie Fehrenbacher. The real breakthrough of Google Glass: controlling the internet of things. Posted March 23, 2013, on gigacom.com. Online: >https://gigaom.com/2013/03/23/the-real-breakthrough-of-google-glass-controlling-the-internet-of-things/<

[25] Larry Karisny. Getting Cybersecurity to Actually Work: More Connections, More Problems. Posted September 15, 2014, on digitalcommunities.com. >http://www.digitalcommunities.com/articles/Getting-Cybersecurity-to-Actually-Work.html<

“Before we discuss solutions to these cybersecurity problems, let’s take a look at what the future looks like in our continually interconnected world. From social media to smart phones apps to the IoT promise of smart everything, we are reaching a point of truly not knowing what is connect to what — and hackers know this. Take the Target breach — the attacker used backdoor access to the company’s energy management systems to then access a server containing confidential customer information. We are increasing (sic) digitizing our people and machine processes, and are beginning to lose control of what we are doing.”  

[26] Zach Ferres. The Internet of (Bad) Things. Posted November 5, 2014, on linkedin.com. Online: >https://www.linkedin.com/pulse/article/20141105140616-28760747-the-internet-of-bad-things<

[27] Larry Karisny. DARPA Director Calls for Cybersecurity Change. Posted November 7, 2014, on digitalcommunities.com. Online: >http://www.digitalcommunities.com/articles/DARPA-Director-Calls-for-Cybersecurity-Change.html<

[28] By Josh Warwick, video by Phil Allen. Meet the 21-year-old YouTuber who made millions playing video games. Posted October 16, 2014, on telegraph.co.uk. Online: >http://www.telegraph.co.uk/men/the-filter/11139724/Meet-the-21-year-old-YouTuber-who-made-millions-playing-video-games.html<

[29] Stephen Evans. The Koreans who televise themselves eating dinner. Posted February 4, 2015, on BBC.com. Online: >http://www.bbc.com/news/magazine-31130947<

[30] Luisa Rollenhagen. Guy Hacks Google Glass to Steer Drone. Posted August 23, 2013 on mashable.com. Online:

>http://mashable.com/2013/08/24/drone-pilots-google-glass/<

[31] See e.g. Erin Carson. 2015: 4 IT job skills for the new year. Posted January 8, 2015, on techrepublic.com. Online: >http://www.techrepublic.com/article/2015-4-it-job-skills-for-the-new-year/<

Canvassing conventional and learned wisdom, I would humbly say that at least one of my predictions (protections) is echoed and supported in the focus here on “security skills” in this piece by HR and IT professionals. Three of my other predictions (Remoting, A3, and Personalization) are at least strongly implicated, in the call for “versatility” and skills in “project management”. “Desktop support” is the fourth 2015 IT job skill set listed by Techrepublic.

Aereo has had quite an exciting ride since its advent on the business scene and unbridled challenge to incumbents in the media and broadcast space,[1] to its defense of several and serial legal and regulatory challenges that went as far as the United States Supreme Court,[2] its maneuvering to find some safe harbor that would permit continued operations,[3] and its eventual succumbing in filing for bankruptcy,[4] after losing the fight against a temporary injunction[5] that sounded the death knell of its business model.

 

Of course, if you subscribe to the “circle of life, death, and rebirth”, then an end may also be a beginning, as shown by regulatory hints or suggestions[6] that the copyright and broadcast rules may be changed or even go so far as to favour entities such as Aereo in the future.[7] However, we will only know and believe it when we can see, sell, order, download, and display it (and out of), prime time.

 

Whether the company was a little guy (with big funding), that was just too far ahead of its time,[8] or an upstart that flaunted the law and appropriately got slammed for it,[9] varies by audience. On that much, we can all continue to disagree. However, until such time as another Aereo rises, or the rules change to invite same, Aereo is a part of business and media history,[10] and rather unlikely to make a comeback.

 

In all corners of the media and infotainment space – both new and old, lessons have been taught, and hopefully learned.

_____________________________________________________

Author:

Ekundayo George is a lawyer and a sociologist.  He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling, diverse litigation, and regulatory compliance practice.  He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America.  See, for example: http://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications through work in the Satellite Policy Branch, International Bureau, at the Federal Communications Commission, eCommerce, Outsourcing, and Cloud contracts); Financial Services, Healthcare, Entertainment, Real Estate and Zoning; International/cross-border trade and other service industry sub-sectors; and Environmental Law & Policy.  A published author on the National Security aspects of Environmental Law, he has also represented clients in courts and before regulatory bodies in both the United States and Canada, and he enjoys complex systems analysis in legal, technological, and societal milieux.

 

As a Lead Consultant and founder of a consulting subsidiary, Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on small, medium and large strategic projects with multiple stakeholders and multidisciplinary teams.  Our selected consulting competencies include program investigation, sub-contracted procurement of personnel and materiel, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through a highly-credentialed resource pool with several hundred years of combined expertise, in: Healthcare; Education and Training; Law and Regulation; Policy and Plans; Statistics, Economics, and Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT) in other parts of the world.  See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering any professional service, or attorney advertising where restricted or barred.  The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.  Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

 

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[1] See Ekundayo George. WNET, THIRTEEN v. Aereo, Inc.: Antennas Jousting in and at Clouds, in the Eye of a Global Storm. Posted April 28, 2014, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2014/04/28/wnet-thirteen-v-aereo-inc-antennas-jousting-in-and-at-clouds-in-the-eye-of-a-global-storm/<

[2] See Ekundayo George. WNET THIRTEEN v. Aereo, Inc. – the United States Supreme Court (U.S.S.C.) Verdict. Posted June 26, 2014, on ogalaws.wordpress.com. Online: > https://ogalaws.wordpress.com/2014/06/26/wnet-thirteen-v-aereo-inc-the-united-states-supreme-court-u-s-s-c-verdict/<

[3] Aereo sought relief and an operating reprieve by way of the statutory licensing of cable transmissions through the below section of the Copyright Act; with itself to be deemed as a cable broadcaster in light of analysis within the United States Supreme Court’s ruling. However, the Copyright Office declined to grant it that status in a letter to Aereo of July 16, 2014, as the Aereo transmissions were not sufficiently “localized”. The Copyright Office did, however, accept the filing provisionally, pending further legislative or regulatory developments.

 

17 U.S. Code §111 – Limitations on exclusive rights: Secondary transmissions of broadcast programming by cable. See Jacqueline C. Charlesworth, General Counsel and Associate Register of Copyrights, United States Copyright Office. Letter to Aereo. Re Section 111 Statement of Account Filings, dated July 16, 2014. Posted on nab.org and visited November 25, 2014. Online: >http://www.nab.org/documents/newsRoom/pdfs/071614_Aereo_Copyright_Office_letter.pdf< See also Cornell Legal Information Institute (LII), 17 U.S.C. §111. Online: >http://www.law.cornell.edu/uscode/text/17/111<

 

Aereo also sought relief from the FCC, in having itself deemed a multichannel video program distributor (MVPD) over the internet. Noting a lack of clear legal rules that could assist new entrants in their challenge to incumbents, and their efforts at market expansion in favour of the consumer, Counsel for Aereo wrote in the letter, that:

 

“The Commission could provide such assurance to new market entrants like Aereo by defining or construing “MVPDs” to include systems that transmit linear channels of video programming to consumers via the internet—thereby securing to all MVPDs, in a technology-neutral way, the right to engage in timely, good faith negotiations to license channels by retransmission consent.”

 

After meeting with the FCC Commissioners and senior staffers to present its case and plea for an expedited notice of proposed rulemaking (NPRM) procedure, however, and before the Commission could issue a ruling on the matter, the New York Federal District Court made its adverse preliminary injunction ruling against Aereo.

 

“Finally, Aereo emphasized that timely Commission action is crucial to its ability to bring such a service to market. Issuing the proposed NPRM within the next several weeks, and adopting the proposed rule within several months thereafter, would support Aereo’s re-launch as a viable and sustainable new entrant in competition with incumbent MVPDs.”

 

See Seth Greenstein, Esq., of Constantine Cannon LLP, Counsel to Aereo. Letter to the Federal Communications Commission (FCC), Re: Ex Parte Presentation Notice, Interpretation of the Terms “Multichannel Video

Programming Distributor” and “Channel,” MB Docket No. 12-83, dated October 10, 2014. Published on apps.fcc.gov. Online: >http://apps.fcc.gov/ecfs/document/view?id=60000972464<

[4] On November 20, 2014, Aereo filed for protection from its creditors under Chapter 11 (reorganization) of the United States Bankruptcy Code, in the United States Bankruptcy Court for the Southern District of New York. The case number is 1:14-bk-13200. See Pacer for a fuller chronology of the petition. Online: >https://www.pacermonitor.com/public/case/5258727/Aereo,_Inc<

[5] See American Broadcast Companies, Inc., v. Aereo, Inc., 12-cv-1540, and WNET et al. v. Aereo, Inc., 12-cv-1543, October 23, 2014 temporary injunction Opinion and Order of The Honourable Alison J. Nathan, United States District Judge, in the United States District Court for the Southern District of New York. Posted on nab.org, visited November 25, 2014. Online: >http://www.nab.org/documents/newsRoom/pdfs/102314_Aereo_injunction.pdf<

 

“In light of the Supreme Court’s decision, Plaintiffs are now able to demonstrate a likelihood of success on the merits. The balance of hardships also now tips in their favor and, as previously held, an injunction would not disserve the public interest, Aereo I, 874 F. Supp. 2d at 403-404.”

Opinion and Order at page 16: III Conclusion.

 

The court in its ruling, soundly rejected both the Aereo’s arguments under 17 U.S.C. §111 (community antenna television system/cable broadcaster), and 17 U.S.C. §512(a) (innocent conduit). See also 17 U.S. Code §512 – Limitations on liability relating to material online. Published on Cornell Legal Information Institute (LII). Online: >http://www.law.cornell.edu/uscode/text/17/512<

[6] See T.C. Scottek. FCC considers backdoor rule change that could jumpstart the era of internet television. Posted May 23, 2012, on theverge.com. Online: >http://www.theverge.com/2012/5/23/3038777/fcc-rule-change-internet-tv-cable-mvpd< In 2012, conventional wisdom placed the FCC on the verge of re-interpreting the word “channel” under the Communications Act of 1934 (as amended by the Telecommunications Act of 1996), to be used both ““in a “container” sense, to refer to a range of frequencies used to transmit programming, and in a “content” sense to refer to the programming itself,”” which would have put internet television providers (online video distributors, or “OVDs”) such as Hulu and Netflix into the same category as mainstream cable and satellite companies – such as Comcast and TimeWarner, and forced the incumbent major networks to provide them with content as multichannel video programming distributors (MVPDs). However, the initiative did not hold its ground.

[7] Chairman Tom Wheeler, the United States Federal Communications Commission (FCC). Tech Transitions, Video, and the Future (Official FCC Blog). Posted October 28, 2014, on fcc.gov/blog. Online: >http://www.fcc.gov/blog/tech-transitions-video-and-future<

 

“The mantra “Competition, Competition, Competition” fits perfectly with consumers’ desires for video choices. That’s why I’m asking my fellow Commissioners to update video competition rules so our rules won’t act as a barrier to this kind of innovation. Specifically, I am asking the Commission to start a rulemaking proceeding in which we would modernize our interpretation of the term “multichannel video programming distributor” (MVPD) so that it is technology-neutral. The result of this technical adjustment will be to give MVPDs that use the Internet (or any other method of transmission) the same access to programming owned by cable operators and the same ability to negotiate to carry broadcast TV stations that Congress gave to satellite systems in order to ensure competitive video markets.”

 

“A key component of rules that spur competition is assuring the FCC’s rules are technology-neutral. That’s why the definition of an MVPD should turn on the services that a provider offers, not on how those services reach viewers. Twenty-first century consumers shouldn’t be shackled to rules that only recognize 20th century technology.” (Emphasis added).

 

[8] TMP Staff. Aereo bankruptcy: A visionary tech startup killed off by big media and courts? Posted November 22, 2014, on techmediapolitics.com. Online: >http://www.techmediapolitics.com/aereo-bankruptcy-a-visionary-tech-startup-killed-off-by-big-media-and-courts/<

[9] Joan E. Solsman. Aereo’s bankruptcy filing marks a fade to black: After months of “not dead yet” declarations, the streaming-TV startup files for Chapter 11 reorganization, the clearest sign that a Supreme Court ruling set it on a road to nowhere. Published November 21, 2014, on cnet.com. Online: >http://www.cnet.com/news/aereo-files-for-bankruptcy-protection/<

[10] See e.g. Aereo. The Next Chapter. Posted November 21, 2014, on blog.aereo.com. Online: >http://blog.aereo.com/2014/11/next-chapter/<

PREFACE:

Just the other day, when I was looking over a post on the 5 largest cyberbreaches of 2014 (to date),[1] my mind went back to the Case of Bob,[2] a malfeasing cyber breach insider, on whom I blogged in an earlier post.  The top 5 list sequenced a total of 309 million records.[3]  That is, I believe, enough to cover stealing one record each, from every Citizen of Canada (34 million), Italy (61 million), France (63 million), the United Kingdom (64 million), and Germany (82 million); at a total of 304 million records, according to their respective population counts in 2013.[4]  Looking only domestically, in the United States, this 309 million could account for the loss of a single record (e.g. social security number) for all but 6 million U.S. Citizens in a 315 million population count at 2013.[5]  That’s a whole lot of broken (out/into) records![6]

Clearly, this is a big and growing problem.  And so, I decided to look a little more closely at that list, focus-in on the non-American example of South Korea,[7] and lay-down a better understanding of why the cyber realm remains so hard to secure – not just from last year’s big breaches at Target,[8] Adobe,[9] and LivingSocial,[10] but persistently and consistently for even those most tech-savvy of U.S. businesses and veterans of the eCommerce and eBanking verticals, including Google/Gmail,[11] Home Depot,[12] JPMorgan Chase & Co,[13] and eBay;[14] along with assorted state and federal government entities.[15]

I will look at the problem from four angles: “B” for Bob, “E” for eCommerce, “S” for Structure, and “T” for Trust; addressing the challenges and opportunities in which, obviously requires certain “b-e-s-t” practices.  This is a simplification of an extremely complex issue, but a useful approach, nevertheless.

 

THE B-ANGLE:

Bob[16] was not the first, nor will he be the last insider to “go rogue”.  The debate continues on whether insiders or outsiders are the greater threat.

“The fact that the individual was reportedly able to access and then sell on vast quantities of customer information is very worrying. It should not be the case that an employee – and in this case a temporary consultant – is able to access and then download sensitive data without this suspicious activity being flagged up,” (…)[17]

“It would seem that this case is a classic example of the ‘insider threat’ – that is, the malicious abuse of privileged access. A breach of customer data can spell disaster for a business, due to the loss of customer confidence, revenue and the possibility of severe financial penalties if they are found to have been negligent in the protection of this information.”[18]

However, it is the safest and the highest of best practices, to do one’s utmost best to protect against both, and each through the other, in a figure of eight lattice-work.

Suggested solutions include: proper and more comprehensive onboarding and offboarding; segregation of duties; rigorous credentialing and authorization procedures; real-time access and event logging; training and discipline with enforced usage rules (BYOD, social media, portable media, telecommuting); behavioural guidance including full disclosure of privacy limitations and waivers as applicable (travel and mobile security, regulatory compliance, data governance, eDiscovery, and cybersecurity); and so forth – including ONGOING due diligence on ALL employees, vendors, contractors, and counterparties on these parameters.[19] Just as banks were looking to their law firms to harden cyber defences,[20] regulators and especially financial sector regulators, have also been increasingly focused on the issue of cybersecurity.

The question we need to all ask as regulators is should we be considering the cyber threat as something as fundamental to institutions as capital levels. I’m not saying yet that they’re equal but we should probably start discussing them in the same breath[.][21] The legal community has long weighed-in on this issue for and regarding others, but has only recently and so publicly, been forced to look at its own house, with some resulting and readily available, practical guidance on the starting point for a law firm cyber audit that is easily applicable to other industries.[22]

 

THE E-ANGLE:

eCommerce is a 5-edged sword (hard to see in reality – especially as anything easy to wield or even effective, but logically easy to conceptualize). There are the two (alleged) counterparties; there are each of the (apparent) originating and destination locations; and then there are the (acceptable, accredited, and accepted) payment parameters. These are the five.

Counterparties are “alleged” because one or more may be fictitious or on a borrowed or pilfered identity.  Originating and destination locations may be fronts, dead drops, or non-existent.  And the acceptable payment methods may have one party presenting something with false accreditation that is accepted as valid until it is too late to halt the deal;[23] something with proper accreditation that is intercepted before being properly accepted by the intended recipient;[24] or something with proper accreditation that is accepted by a fictitious or otherwise fraudulent counterparty.[25]

Albeit fraught with dangers, eCommerce has become indispensable in an interconnected, and beyond line of sight business world.  The best we can do is manage it, harden it in advance, and adapt as and when a new vulnerability is shown in this constant battle for sword edges between victims, and rogues.

 

THE S-ANGLE:

Now, we look back to South Korea, and ask whether there is any structural strength or weakness that makes the nation a recurring[26] and worthy[27] target for cybercrime; and the answer is a very loud yes.

With a wealthy and tech savvy population that has a GDP/PPP over US $33,000, South Korea in 2013, was Asia’s 4th largest economy, 12th largest in the world, and 10th largest, globally, in terms of trade in merchandise and services, alone.[28] In that same year, the economy grew by 2.8%, and had a projected 2014 growth forecast of 3.5-4%.[29]

Essentially, South Koreans are connected, mobile-friendly, and absolutely just love eCommerce.  Nearly 80% of the population is online, which makes it the most connected country in the world.[30]  Mobile penetration has also long been high,[31] with 75% of South Koreans using smartphones overall, and a 98% penetration rate for the 18-24 demographic.[32] On the subject of eCommerce, the consultant Borderfree, “found that an increasing number of South Koreans shop overseas retailers to find lower prices, leverage parcel forwarding to save on shipping costs and join online communities to resell imported items they don’t want.”[33]  Since at least 2008, it has been quite commonplace for South Koreans to send and receive gift certificates and discount coupons by mobile or smart phone, which can be redeemed just by showing the phone and having it scanned, making coupon clipping (and paper coupons), things of the past.[34]

“From smartphones with flexible, foldable screens to smart refrigerators where you can view the inside contents while shopping; or smart communities, where even your child’s wanderings can be tracked through a central operations centre, Korean companies are on the cutting edge of technology.  Each is vying to be the first to develop the Next Big Thing.”[35]

Hence it follows that if everything cyber-new is there, as in methods and applications in a target-rich environment, then every old and new form of cyber offence will also follow into this nation that is essentially structured and functions, as a massive testbed!

This factor is further underscored by the fact that: “South Koreans have on average five credit cards, compared to two in the U.S., and the country has the highest credit card penetration globally.  Consumers in South Korea also use credit more often.  There are 129.7 credit card transactions per year in South Korea, compared to 77.9 credit card transactions annually in the U.S.[36]  Newer technologies introduced will invariably have often unforeseen vulnerabilities that have yet to be patched, and credit card ownership and use have, to date, hardly proved to be entirely risk-free.

It is therefore no surprise that cyber-criminals will congregate at that confluence of high credit card use, high technology, extreme connectivity and mobility, and intense eCommerce that is South Korea.

 

THE T-ANGLE:

I have written, elsewhere, that data has very many “faces” – ranging through Form Factors, Applications, Categories, End-users, and Scale; and therefore presenting many attack surfaces vulnerable to myriad and multiplying attack vectors.[37]  Yes, we can (and must) generally trust the data of and provided by counterparties in an eCommerce-driven world, but why not also verify? Too few are taking the time to fully go through the steps, due to cost and time concerns.  When you receive an email, does the return email match the claimed sender, is the content their usual, are the links or required/suggested actions suspicious in any way?  When it is a business, does the contact information match what they list in a directory (remembering that the spoof site found through an internet search is still a spoof site)?  If this is a claimed professional, are they registered somewhere in a searchable official or regulatory database with the same contact data?  Finally, if it is a financial institution account communication, then do you do business with them?  If the answer is no, or your financial services provider does not send you such open login requests, then you should delete the message! These are very basic steps.

Forensic investigations, eDiscovery, disaster preparedness and recovery, and assessing the effect and impact of remediation measures are now greatly aided by better information governance;[38] as well as backups balanced with commonsense and due diligence in knowing what you are getting into with specific situations as a cloud vendor, a cloud user, or a basic data custodian.[39]

 

CONCLUSION:

Banks had all the money, but data custodians have all the data. Criminals therefore go after the motherlodes of data (financial services entities, telecommunications providers, medical legal and accounting professionals, governments, and other data-loaded intermediaries including high volume vendors – supermarkets, department stores, and hardware stores) where no shotguns or facemasks are needed, because they are unseen and can blend into that stream of blissfully unmonitored eCommerce.

Whether stupendously big, or comparatively small,[40] and even if we don’t hear about them publicly or immediately,[41] there will likely still be hacks for quite some time to come. However, all is far from lost, despite the mind-numbing possibility of staggering single and cumulative future data breaches in new markets,[42] and due to developing mobile and virtual payment and settlement solutions – regardless of the breach’s apparent or alleged nation of origin.

“However, I also think that all threats can be adequately considered when you focus on: (a) achieving buy-in to the need for security protocols and adherence thereto at all levels of the organization; (b) you budget accordingly for training, ERP, and the staff and tolls to deal with the threat universe; and (c) you assiduously enforce best practices, even when it makes (for some) the accessing of preferred apps. or sites inconvenient to impossible, or slows people down a little.  I call this cubing the B.”[43]

In the end, it all starts with leadership, because where there is no buy-in for doing what needs to be done from the higher-ups due to cost concerns, short sightedness, or bad advice, there will be little to no I.T. security budget, best practices will be whatever the heck everyone feels like doing at the time, and a breach will surely come.[44]

At the very least, then, in response to Bob & Co. and what they can do, you should sincerely cube that B!

_____________________________________________________

 

Author:

Ekundayo George is a lawyer and a sociologist. He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling (incorporations, business plans, contracts and non-disclosure agreements, teaming and joint venture agreements), diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S. business advising, outsourcing and cross-border trade, technology contracts, and U.S. financing). See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

 

Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant- sourcing, managing, and delivering on large, strategic projects with multiple stakeholders and multidisciplinary teams. Our competencies include program investigation, sub-contracted procurement of personnel and materiel, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through a highly-credentialed resource pool with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – sometimes also termed Information Communications Technologies, or ICT). See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.

 

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[1] Chris DiMarco. The top 5 largest cyberbreaches of 2014 (for now). Published October 9, 2014 on insidecounsel.com. Online: >http://www.insidecounsel.com/2014/10/09/the-top-5-largest-cyberbreaches-of-2014-for-now?page=1<

The writer gave these top 5, in ascending order, as: Gmail/Google (5 million), Korea Credit Bureau (20 million), Home Depot (56 million), JPMorgan & Chase Co. (83 million), and eBay (145 million). See also infra, notes 11-14, and 7.

[2] Ekundayo George. Cybersecurity: the Enemy is also (perhaps even more so), Within – the case of “Bob”. Published January 17, 2013 on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/01/17/cybersecurity-the-enemy-is-also-perhaps-even-more-so-within-the-case-of-bob/<

[3] Supra, note 1.

[4] See generally, Wikipedia.

[5] Id.

[6] This is especially true as a sixth big breach has been added since the list was first made, which now fully covers those 6 million “formerly” lucky U.S. Citizens. See e.g. Steve Kovach. Nearly 7 Million Dropbox Passwords Have Been Hacked. Published October 13, 2014, on businessinsider.com. Online: >http://www.businessinsider.com/dropbox-hacked-2014-10<

[7] Initially pegged at 20 million (which number I have retained), the Korea Credit Bureau breach was later re-calculated to have impacted 27 million South Koreans. See Steve Ragan. 27 million South Koreans affected by data breach. Published August 25, 2014, on csoonline.com. Online: >http://www.csoonline.com/article/2597617/data-protection/27-million-south-koreans-affected-by-data-breach.html<

[8] CBC News. Target data hack affected 70 million people. Published January 10, 2014, on cbc.ca. Online: >http://www.cbc.ca/news/business/target-data-hack-affected-70-million-people-1.2491431<

[9] Chris Welch. Over 150 million breached records from Adobe hack have surfaced online. Published November 7, 2013, on theverge.com. Online: >http://www.theverge.com/2013/11/7/5078560/over-150-million-breached-records-from-adobe-hack-surface-online<

[10] Rachel King for Zero Day. LivingSocial confirms hacking; More than 50 million accounts affected. Published April 26, 2013, on zdnet.com. Online: >http://www.zdnet.com/livingsocial-confirms-hacking-more-than-50-million-accounts-affected-7000014606/<

[11] See generally Google Corporate. Cleaning up after password dumps. Published September 10, 2014, on googleonlinesecurity.blogspot.ca. Online: >http://googleonlinesecurity.blogspot.ca/2014/09/cleaning-up-after-password-dumps.html<

[12] Ben Elgin, Michael Riley, and Dune Lawrence. Home Depot Hacked After Months of Security Warnings. Published September 18, 2014, on businessweek.com. Online: >http://www.businessweek.com/articles/2014-09-18/home-depot-hacked-wide-open<

[13] Jim Finkle and Karen Freifeld. States probe JPMorgan Chase as hack seen fueling fraud. Published Friday, October 3, 2014, on reuters.com. Online: >http://www.reuters.com/article/2014/10/03/us-jpmorgan-cybersecurity-idUSKCN0HS1ST20141003<

[14] Jennifer Abel. eBay hacked again? BBC reports hijacked seller accounts. Published September 23, 2014, on consumeraffairs.com. Online: >http://www.consumeraffairs.com/news/ebay-hacked-again-bbc-reports-hijacked-seller-accounts-092314.html<

[15] Administrative Office of the Washington Courts. Washington Courts Data Breach Information Center: Common Questions. Visited November 3, 2014 (regarding a data breach discovered in February/March, 2013). Online: >http://www.courts.wa.gov/newsinfo/?fa=newsinfo.displayContent&theFile=dataBreach/commonQuestions< ;

The Associated Press in Washington. Records of up to 25,000 Homeland Security staff hacked in cyber-attack.

Published Saturday August 23, 2014, on theguardian.com. Online: >http://www.theguardian.com/technology/2014/aug/23/homeland-security-25000-employees-hacked<

[16] Ekundayo George. Cybersecurity: the Enemy is also (perhaps even more so), Within – the case of “Bob”. Published January 17, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/01/17/cybersecurity-the-enemy-is-also-perhaps-even-more-so-within-the-case-of-bob/<

[17] Sophie Curtis. Credit card details of 20m South Koreans leaked. Published January 20, 2014, on telegraph.co.uk. Online: >http://www.telegraph.co.uk/technology/internet-security/10584348/Credit-card-details-of-20m-South-Koreans-leaked.html<, comments on the Korea Credit Bureau case by Matt Middleton-Leal, regional director for the UK and Ireland at security firm CyberArk.

[18] Id.

[19] Indeed, both of the monumental hacks – at Target and Korea Credit Bureau, were accomplished through third parties: Krebs on Security, Email Attack on Vendor Set Up Breach at Target. Published February 12, 2014, on Krebsonsecurity.com. Online: >http://krebsonsecurity.com/2014/02/email-attack-on-vendor-set-up-breach-at-target/< ; Lucian Ciolacu. Contractor with USB Stick Commits Biggest Credit Card Data Heist in South Korean History. Published January 21, 2014, on hotforsecurity.com. Online: >http://www.hotforsecurity.com/blog/contractor-with-usb-stick-commits-biggest-credit-card-data-heist-in-south-korean-history-7667.html<

As a result, some banks with their own compliance concerns, are now quite nervous about their law firms as vulnerable third parties. See e.g. Jennifer Smith and Emily Glazer of Dow Jones Business News. Banks Demand That Law Firms Harden Cyberattack Defenses. Published October 26, 2014, on nasdaq.com. Online: >

http://www.nasdaq.com/article/banks-demand-that-law-firms-harden-cyberattack-defenses-20141026-00022<

[20] Id. Jennifer Smith and Emily Glazer of Dow Jones Business News.

[21] Kara Scannell in New York. NY bank regulator targets cyber threat. Published October 6, 2014, on ft.com. Online: >http://www.ft.com/cms/s/0/5a981338-4cdf-11e4-a0d7-00144feab7de.html#axzz3HghMk1j4< quote of Benjamin Lawsky, Superintendent for New York’s Department of Financial Services.

[22] Sharon D. Nelson & John W. Simek. Clients Demand Law Firm Cyber Audits. Published in ABA Law Practice Magazine Vol 39, Number 6 (Nov./Dec. 2013) Online: >http://www.americanbar.org/publications/law_practice_magazine/2013/november-december/hot-buttons.html<

[23] As with a stolen credit card, a bounced cheque, or counterfeit cash, for example.

[24] As with a man in the middle attack (spoofed eCommerce website, or legitimate but infected site with cross-site scripting), for example.

[25] As in advance fee fraud, for example.

[26] In July of 2011, two websites (Cyworld and Nate) run by SK Communications of South Korea were breached, resulting in a loss of some 35 million records. “Hackers are believed to have stolen phone numbers, email addresses, names and encrypted information about the sites’ many millions of members.” See BBC. Millions hit in South Korean hack. Published July 28, 2011, on bbc.com. Online: >http://www.bbc.com/news/technology-14323787< . One year later, in July, 2012, South Korean authorities announced arrests in the case of hacks impacting 8.7 million users at KT Corp, the nation’s number one fixed line operator and number two mobile operator.

 

“The company says hackers stole subscribers’ names, phone and personal identification numbers, and then sold the data to telemarketers.”

 

“An illegally installed computer program had collected subscribers’ information over several months, KT Corp said.”

 

See BBC. South Korea arrests phone firm KT Corp hacking suspects. Published July 30, 2012, on bbc.com. Online: >

http://www.bbc.com/news/technology-19048494<

[27] To impact the Personally Identifiable Information (PII) records of 40% of an entire nation’s population in a single stroke, is certainly a major scoop, by any reckoning. Especially ironic, are the circumstances of this hack:

 

Customer details appear to have been swiped by a worker at the Korea Credit Bureau, a company that offers risk management and fraud detection services.” (Where were the vendor due diligence, segregation of duties, and the internal fraud controls?) (Emphasis added).

 

“The worker, who had access to various databases at the firm, is alleged to have secretly copied data onto an external drive over the course of a year and a half.” (Where were the access and event logs, “business need only” access privilege limitations, and random audits?) (Emphasis added).

 

See Sophia Yan and K.J. Kwon. Massive data theft hits 40% of South Koreans. Published January 21, 2014, on cnn.com. Online: >http://money.cnn.com/2014/01/21/technology/korea-data-hack/< See also supra, note 13, Jim Finkle and Karen Freifeld (JPMorgan Chase & Co.).

[28] Foreign and Commonwealth Office of the United Kingdom. Guidance: Overseas Business Risk – South Korea.

Last updated May 27, 2014, and published on gov.uk. Online: >https://www.gov.uk/government/publications/overseas-business-risk-south-korea/overseas-business-risk-south-korea<

[29] Id.

[30] Daniela Forte. South Korea Stands Out as Ecommerce Market for U.S. Retailers. Published June 19, 2014, on multichannelmerchant.com. Online: >http://multichannelmerchant.com/must-reads/south-korea-stands-out-in-ecommerce-market-for-u-s-retailers-19062014/<

[31] The Associated Press. Korea has nearly as many cell phones as people. Last updated January 28, 2009, and published on nbcnews.com. Online: >http://www.nbcnews.com/id/28893283/ns/technology_and_science-tech_and_gadgets/t/korea-has-nearly-many-cell-phones-people/#.VFKb0xbClGM<

[32] Id., and supra note 30.

[33] Supra note 30.

[34] Reuters. Paper is passe for tech-savvy South Koreans. Published Friday, May 9, 2008, on reuters.com. Online: >http://www.reuters.com/article/2008/05/09/us-korea-coupons-idUSS0914416520080509<

[35] Gordon Hamilton. Asia Pacific report: South Korea now a global technology tiger. Published November 25, 2013, on biv.com. Online: > http://www.biv.com/article/2013/11/asia-pacific-report-south-korea-now-a-global-techn/<

[36] Sarah Jones. South Korea boasts highest global credit card penetration: report. Published June 27, 2014, on luxurydaily.com. Online: >http://www.luxurydaily.com/south-korea-boasts-highest-global-credit-card-penetration-report/<

[37] Ekundayo George. The 100 “FACES” of Data: a 5-part Complex Systems Study (Part 1 – Form Factors). Published November 1, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/11/01/the-100-faces-of-data-a-5-part-complex-systems-study-part-1/<

[38] Ekundayo George. To Gatto from Zubulake: 2 Thumbs-up for Better Information Governance/Anti-Spoliation. Published March 31, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/03/31/to-gatto-from-zubulake-2-thumbs-up-for-better-information-governanceanti-spoliation/<

[39] Ekundayo George. Data Protection and Retention in the Cloud: Getting it Right. Published March 11, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/03/11/data-protection-and-retention-in-the-cloud-getting-it-right/< You cannot leave everything to a vendor or counterparty, if and when you are primarily responsible for your own security and the security of the data that you host at rest, in transit, or subject to access and change, for others.

[40] Terry Collins and Anne D’Innocenzio for The Associated Press. Twitter hackers nab data on 250,000 accounts. Published February 2, 2013, on ottawacitizen.com. Online: >http://www.ottawacitizen.com/business/Twitter+hackers+data+accounts/7911027/story.html<

[41] Ben Elgin, Dune Lawrence and Michael Riley. Coke Gets Hacked And Doesn’t Tell Anyone. Published November 4, 2012, on bloomberg.com. Online: >http://www.bloomberg.com/news/2012-11-04/coke-hacked-and-doesn-t-tell.html< This kind of silence is changing, however, due to increasing regulatory focus on cyber risks and cyber events, and a push for timely and full disclosure and remediation when it may impact the bottom line, systemically important entities, or public or investor confidence.

[42] China and India are the most populous nations on earth, with well over 1 Billion citizens, each; but comparatively (with all other nations) very low ratios of banked citizens, and citizens with access to organized credit facilities. The promised easing of China’s restrictions on foreign credit card issuers paves the way for many of the entry-market credit card products that we see in the West – secured cards, rechargeable cards, debit cards, and the like, along with the juicy fees for annual access, loading, overdrafts, late payments, cash advances, and per transaction. Of course, this will require the taking, keeping, and updating of vast amounts of data on a vast population; creating a single and captive, target rich environment of irresistible size that will remain very vulnerable to any lapses in data governance and/or cyber best practices. See generally Joe McDonald of The Associated Press. China easing credit card monopoly opening door for Visa, MasterCard. Published October 30, 2014, on ctvnews.ca. Online: >http://www.ctvnews.ca/business/china-easing-credit-card-monopoly-opening-door-for-visa-mastercard-1.2078518<

[43] Ekundayo George. Individual (allegedly) Wreaks Havoc with Former Employer – Another Teachable Moment in Infosec. Published May 16, 2013, on wordpress.ogalaws.com. Online: >https://ogalaws.wordpress.com/2013/05/16/individual-allegedly-wreaks-havoc-with-former-employer-another-teachable-moment-in-infosec-2/<

[44] See e.g. Supra note 12, Ben Elgin, Michael Riley, and Dune Lawrence (Home Depot).

On Thursday, June 26, 2014, the Supreme Court of Canada released a landmark decision on a major B.C. dispute over aboriginal title and related rights.[1] Since that time, three more cases in the Supreme Court of Canada and provincial Courts of Appeal have cited to that decision,[2] in making their own substantial rulings on Aboriginal title and rights in Grassy Narrows,[3] Tyendinaga,[4] and Corporation Makivic.[5] The question now, with all parties agreeing that the definition and scope of Aboriginal title has been expanded beyond what the Crown had hitherto understood it to mean and encompass, is whether this new, wider path will bring more consensus or more conflict in the field of Aboriginal Law. This blog post will explore some of the issues and conclude that there is indeed a fork in the road, either way, but that the Crown and Canada’s Aboriginal Nations, individually and collectively, all have but one path to take – that of good faith cooperation in consultation and accommodation; as mandated by (and if necessary, reviewed under), the laws of Canada pre- and post- patriation.

 

 

BASES OF LAW:

A maze of elements makes-up the field of Aboriginal Law in Canada. This includes the Indian Act,[6] and the precedent prior to it in the Treaties with the Crown over the early years[7] that cover much of what is Canada today, the Constitution Act,[8] and the Canadian Charter of Rights and Freedoms.[9] Tacked-onto this, are the various federal[10] and provincial laws that do or may impact protected aboriginal rights in the realms of sovereignty, resource management, and land stewardship. A full or more complete coverage of all of these is far beyond the scope of this blog post. However, a brief overview of some of the more pertinent parts of this mix is necessary for a better understanding of Tsilhqot’in’s seminal role.

 

The Constitution Act, 1867[11]

Section 91(24) of the Constitution Act, 1867, reserves unto the federal Parliament the power to make laws over “Indians, and lands reserved for Indians”. As this takes supremacy over provincial powers in section 92(13) “property and civil rights in the province”, the federal government and the Indian Act – which was the attempt to meet the mandate of section 91(24) – are the logical starting point. However, section 92A (non-renewable natural resources, forestry resources and electrical energy), further shows that the provinces are co-partners with the central government in Aboriginal relations due to both the resource-heavy focus of the Canadian economy, and the concentration of Aboriginal rights and title on land and the fruits of land. Not surprisingly, this is a recurring point of contention in the clashes on Aboriginal rights and title. Also of note in these disputes are section 92(5) – “management and sale of the public lands belonging to the province and of the timber and wood thereon”, and section 109 –

109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same. (Emphasis added in italics).[12]

 

Treaties

Between 1871 and 1921 (post-Confederation), Canada entered into a total of 11 treaties with the First Nations located within most of the Canadian contiguous territory, but excluding the Métis, the Inuit, and many of the First Nations of British Columbia.[13] Sequentially numbered, these 11 treaties were concluded in the following years, regarding the following land areas and regions, and with the following peoples:[14]

Treaty 1 (1871) – covering Southern Manitoba and Saskatchewan, and entered into with the Ojibway and Cree First Nations.

Treaty 2 (1871) – covering Southern Manitoba and Saskatchewan, and entered into with the Ojibway and Cree First Nations.

Treaty 3 (1873) – covering Southeastern Ontario (Lake of the Woods region), and entered into with the Ojibway First Nation (Saulteaux).

Treaty 4 (1874) – covering Southern Saskatchewan (Qu’Appelle region), and entered into with the Cree and Ojibway (Saulteux) First Nations.

Treaty 5 (1875) – covering Central-northern Manitoba, and entered into with the Ojibway (Saulteux) and Swampy Cree First Nations.

Treaty 6 (1876) – covering Central Saskatchewan and Alberta, and entered into with the Plains and Woodlands Cree First Nations.

Treaty 7 (1877) – covering Southern Alberta, and entered into with the Blackfoot and other First Nations.

Treaty 8 (1899) – covering Northern Alberta and the Northeast portion of British Columbia, and entered into with the Cree, Dene, Dogrib, and other First Nations.

Treaty 9 (1905) – covering Northern Ontario (James Bay region), an entered into with the Cree, Ojibway, and other First Nations.

Treaty 10 (1906) – covering Northern Saskatchewan (Peace River region), and entered into with the Dene First Nation and Métis Peoples, amongst others.

Treaty 11 (1921) – covering the western portion of the Northwest Territories, and entered into with the Dene First Nation and Métis Peoples of the Mackenzie region, amongst others.

The Canadian federal government and the provinces are co-equal partners in confederation, and so the provinces as “provincial Crowns”, are charged with administering those treaties that touch and concern the lands within their respective boundaries, on behalf of the “federal Crown”. As such, the federal government and the provinces are co-equally bound in entering into, enforcing, and honouring those treaties; indeed so much so, that in a number of cases both the federal and respective provincial governments, will join as parties in treaty disputes and ongoing negotiations under the Crown duty to consult and accommodate. Also, when the federal government is the counterparty, the salutation or caption reads “the Queen in Right of Canada”, and when a province is a party the salutation or caption reads “the Queen in Right of – ” that province.

 

The Indian Act[15]

The Indian Act represents an attempt by the federal government to occupy the field with respect to aboriginal matters. Coverage ranges from the definition of who is and is not an Indian under the Act, the maintenance of band lists, regulation of reserve lands and band councils, internal governance of reserve lands, band membership, property and trading, and the management of moneys flowing to and from reserves, and as held or managed on behalf of Indians by the Crown or its agents. However, one carve-out at section 88, fully in line with Canadian sovereignty and provincial legislative authority, is key:

88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts.

 

The Canadian Charter of Rights and Freedoms[16]

Canada does have a separate Bill of Rights (as does the province of Quebec). However, it is this Charter of Rights and Freedoms (the Charter) that is most commonly used by Aboriginal and other Canadians alike, in their attempts to redress perceived violations of their rights. The Charter (being sections 1 through and including 34 of the Canada Act, 1982), recognizes the primacy of the Constitution Act, 1867:

52(1). The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

And, along with fundamental freedoms, mobility rights, legal rights, equality rights, and linguistic rights, there are additional provisions specifically protecting Canada’s Aboriginal peoples. These include sections 22, 25, and 35.

 

Rights and privileges preserved

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French. (Emphasis added).

 

Aboriginal rights and freedoms not affected by Charter

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

 

Recognition of existing aboriginal and treaty rights[17]

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

 

Definition of “aboriginal peoples of Canada”

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

 

Land claims agreements

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

 

Aboriginal and treaty rights are guaranteed equally to both sexes

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Under section 35.1, Canada also undertakes to: (i) convene a constitutional conference, and (ii) “invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item”, before any changes are made to section 91(24) of the Constitution Act, 1867 (above); section 25 of the Canada Act, 1982 (above); or to section 35 (including by implication any subparts, such as 35.1, also).

Again, however, there are two carve-outs that add a degree of freedom for both the federal and provincial Crowns to temporarily curtail any rights – Aboriginal or non-Aboriginal – through sections 33 and 1.[18]

 

Exception where express declaration

33(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

 

Operation of exception

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

 

Five year limitation

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

 

Re-enactment

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

 

Five year limitation

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

 

Section 1, which is part of the Charter, provides:

Rights and freedoms in Canada

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (Emphasis added).

By this mandate, the Supreme Court has established a test (the “Oakes Test”),[19] in holding that:

“To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom,”” (…) (citations omitted).

 “Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test”” (…) (citations omitted).[20]

 

 

THE LANDMARK RULING:

 

Tsilhqot’in:

This case involved a series of questions with regard to Aboriginal Law in Canada. The trial judge had found that: (i) by a given definition of Aboriginal title; (ii) Aboriginal title existed in the subject lands; (iii) (iii) and by breaching its constitutional duty to consult and accommodate prior to issuing logging licenses under the Forest Act of British Columbia with regard to those lands;[21] (iv) the Crown had made an unjustified incursion onto those lands and in violation of that Aboriginal title. Core questions at the Supreme Court of Canada (S.C.C.), were therefore: (a) what is the proper test for Aboriginal title; (b) did the trial judge err in finding that it existed in those lands; (c) did the Crown breach its duty to consult and accommodate before issuing the licenses; and (d) was the incursion unjustified under the law?[22]

The Tsilhqot’in Nation is a group of 6 bands[23] in British Columbia that share a common culture and history. “They lived in villages, managed lands for the foraging of roots and herbs, hunted and trapped. They repelled invaders and set terms for the European traders who came onto their land.”[24] However, like hundreds of other Aboriginal groups in British Columbia, they have unresolved land claims, lack treaties with both the federal and provincial Crowns, and consider the land as having always belonged to them.[25] The actual claim involves a sparsely populated area of 200 people (mostly from the 3,000 member Tsilhqot’in Nations), which covers roughly five percent of the total Tsilhqot’in territory, and it arose from the 1983 grant by British Columbia of a forest license to Carrier Lumber Ltd. After a bridge blockade, demands for a right of first refusal over logging by the originating Xeni Gwet’in First Nation, a Compliant amended in 1998 to include all Tsilhqot’in Nations, and a trial that began in 2002 and ended in 2007, the trial Judge – The Honourable Vickers, J. of the British Columbia Supreme Court – applied the test for Aboriginal title laid-down by Lamer, C.J. in Delgamuukw,[26] and ruled in 2007, that Aboriginal title was properly applicable for a part of the claim area, as well as some lands outside the claim area; but he did not make any declaration of title.[27]On this basis, he concluded that the Tsilhqot’in had established title not only to village sites and areas maintained for the harvesting of roots and berries, but to larger territories which their ancestors used regularly and exclusively for hunting, fishing and other activities.”[28]

In 2012, the British Columbia Court of Appeal reversed that ruling, and found that title had not been established; although admitting that the Tsilhqot’in Nation “might” be able to prove its claim to Aboriginal title at some point in the future.[29]It held that to prove sufficient occupation for title to land, an Aboriginal group must prove that its ancestors intensively used a definite tract of land with reasonably defined boundaries at the time of European sovereignty.”[30] The B.C. Court of Appeal further ruled that their rights with regard to the rest of the claimed lands (on the spectrum of Aboriginal rights identified in earlier caselaw),[31] were “confined to Aboriginal rights to hunt, trap and harvest (…).[32]

At the S.C.C. and regarding the first and second core questions identified above, the S.C.C. found that the proper test for Aboriginal title had been used at trial, and that there was indeed sufficient occupation of a continuous and exclusive nature, to support the finding at trial of valid Aboriginal title; with the province having failed to show “(…) that the conclusions of the trial judge are unsupported by the evidence or otherwise in error. Nor has it established his conclusions were arbitrary or insufficiently precise.”[33]

On the issue of infringement, the S.C.C. first acknowledged that Section 109 of the Constitution Act, 1867, makes the Crown’s residual title to land subject to Aboriginal title,[34] and then summarized the resultant rationale for the constitutional, legal need to justify any and all infringements of those rights.[35] In identifying and applying the test[36] for infringement justifications, the S.C.C. stated at para. 77:

To justify overriding the Aboriginal title-holding group’s wishes on the basis of the broader public good, the government must show: (1) that it discharged its procedural duty to consult and accommodate, (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group: Sparrow.[37]

Prior to the establishment of title, the Crown owes a duty to consult, and accommodate if necessary, the interests of the Aboriginal group concerned. “At this stage, the Crown may continue to manage the resource in question, but the honour of the Crown requires it to respect the potential, but yet unproven claims.”[38] Once title is established, however, a greater duty is owed; all prior actions by the Crown with regard to the land (including legislation, if applicable) must be reconsidered and may be abandoned or recalled if and as necessary to preserve the interests[39] of the Aboriginal group in that land; and absent consent and accommodation, or justified incursion under s. 35 of the Constitution Act, 1982, the project or proposed use cannot lawfully proceed.[40]

On the third core question, the breached duty to consult found at trial, the S.C.C. agreed that there had been a clear breach by the Crown of its fiduciary and constitutional duty to consult and accommodate:

The Crown’s duty to consult was breached when Crown officials engaged in the planning process for the removal of timber. The inclusion of timber on Aboriginal title land in a timber supply area, the approval of cut blocks on Aboriginal title land in a forest development plan, and the allocation of cutting permits all occurred without any meaningful consultation with the Tsilhqot’in.[41]

Finally, the S.C.C. turned to the fourth core question, and the issue of justification for the infringement. The Court agreed with the holding in Delgamuukw, namely that “(…) notwithstanding s. 91(24), provincial laws of general application apply proprio vigore to Indians and Indian lands.[42] However, the Sparrow factors also required consideration and weighing, to whit: “(1) whether the limitation imposed by the legislation is unreasonable; (2) whether the legislation imposes undue hardship; and (3) whether the legislation denies the holders of the right their preferred means of exercising the right (at p. 1112).”[43]

Finding, first, that there was an implied right of the province within the Forest Act, to regulate all lands “under claim for aboriginal title” prior to the actual establishment of Aboriginal title (to avoid the unwelcome result of those vast tracts of British Columbia lands being left entirely unregulated),[44] the S.C.C. considered the doctrine of paramountcy (federal law prevails where it is impossible to comply with both federal and provincial law on the same subject, or where the provincial law “frustrates the purpose” of the federal law);[45] and the doctrine of interjurisdictional immunity (“where laws enacted by one level of government impair the protected core of jurisdiction possessed by the other level of government”),[46] to conclude that the trial Judge improperly applied interjurisdictional immunity to find infringement when the same conclusion could have been reached by applying the more “complete and rational” Sparrow factors approach, to an analysis of s. 35 of the Constitution Act, 1982.[47] The S.C.C. therefore allowed the Appeal and granted a declaration of Aboriginal title in favour of the Tsilhqot’in.[48]

 

 

ITS IMMEDIATE AFTERMATH:

Subsequent to Tsilhqot’in, we must consider three additional cases decided on the subject of Aboriginal law in Canada. Grassy Narrows First Nation v. Ontario (Natural Resources) was decided in the S.C.C.,[49] Tyendinaga Mohawk Council v. Brant was decided in English-speaking Canada’s Court of Appeal for Ontario,[50] and Corporation Makivik c. Québec (Procureure générale) was decided in French-speaking Canada’s Court of Appeal of Quebec.[51] I will address these cases in their chronological order.

 

Grassy Narrows:

The Grassy Narrows First Nation, successors in interest to the Aboriginal signatories, had originally taken issue with Ontario’s interpretation of Treaty 3 of 1873.[52] The Treaty had been made between the Ojibway and Canada, but the province of Ontario had “stepped into the shoes” of Canada in follow-on implementation that would impact their Aboriginal rights by issuing clear-cut licenses to Resolute FP Canada Inc. (formerly Abitibi-Consolidated Inc.), in 1997.[53] The Grassy Narrows First Nation had launched their action to set aside those licenses for violating their harvesting rights under Treaty 3.  Referred to as the Keewatin tract, the disputed portion of land covered by the treaty – originally property of the Dominion of Canada – had later been annexed to Ontario through the Ontario Boundaries Extension Act, S.C. 1912, c. 40. This firmly gave Ontario the right to manage the Treaty and “take-up” the subject lands as and when needed.[54]

The Ojibway yielded ownership of their territory, except for certain lands reserved to them. In return, the Ojibway received annuity payments, goods, and the right to harvest the non-reserve lands surrendered by them until such time as they were “taken up” for settlement, mining, lumbering, or other purposes by the Government of the Dominion of Canada.[55]

The trial judge ruled that Ontario did not have the authority to take-up the treaty lands, or to infringe on the Aboriginal harvesting rights. The Ontario Court of Appeal reversed, and the S.C.C. agreed that Ontario did indeed have full authority under sections 92A, 92(5), and 109,[56] to take-up the subject lands without any reference to or approval from the federal government in a 2-stage process;[57] but “subject only to the legal limits imposed by the honour of the Crown and s. 35 of the Constitution Act, 1982.” [58] As the Chief Justice wrote in her Opinion, in the unanimous decision of the 7 Justices there present:

Ontario has exclusive authority under the Constitution Act, 1867 to take up provincial lands for forestry, mining, settlement, and other exclusively provincial matters. Federal supervision is not required by the Constitution.[59]

Attempts to cite the doctrine of interjurisdictional immunity considered in Tsilhqot’in, as a bar against provincial taking-up of Aboriginal lands and infringing treaty rights, were dismissed as inapplicable.[60]

 

Tyendinaga:

In a largely internal dispute, the Tyendinaga Mohawk Council sought clarification of the interpretation and application of certain sections of the Indian Act,[61] as they touched and concerned lands on the actual reserve of that First Nation, and a building that was situated on the territory of that First Nation.[62] The Respondents had made an offer to purchase some lands, not followed through, borrowed money and constructed a building on the lands which they occupied for a time, and then abandoned. They never repaid those loans, but returned several years later to make a low offer for the lands (which was rebuffed), and then forcibly re-occupied the building that they had erected, to claim it as their own. Later, they “sold” the land and building to a third party, which then operated there over the Council’s objections.[63]

The Chief of the Mohawks of the Bay of Quinte First Nation (MBQ) then launched a suit to regain possession of the lands and building and recover damages, and the trial judge granted a mandatory inunction, along with general and special damages of $250,000 and $50,000, respectively.[64] After the substance of the malfeasing parties’ appeals were dismissed, MBQ sought to enforce its win through writs of seizure and sale against other properties of their opponents that had not been the subject of the action. However, the sheriff refused on the advice of the Attorney General of Ontario that s. 29 of the Indian Act exempted reserve lands from seizure.[65] As a result, MBQ sought a Motion to force compliance in the transfer of Certificates of Possession for those unrelated lands,[66] which now brought the Attorney General of Canada’s participation on behalf of the Indian Lands Registrar, to reiterate the discretionary authority of the Minister of Aboriginal Affairs and Northern Development in “(…) the examination, registration and recording of documents such as leases, allotments, designations and permits that grant an interest or licence in First Nation lands. This includes the transfer of possession of reserve lands.[67]

The motions judge found that s. 29 (exemption of real property from seizure) and s. 89(1),[68] which prohibited the seizure of personal property of an Aboriginal person or Band by anyone other than another Aboriginal person or a Band, worked in unison; and that the Ontario Superior Court therefore had jurisdiction to order completion of all papers, subject to the Indian Act, that were needed to transfer the Certificates of Possession back to the MBQ,[69] as the said Certificates of Possession represented “merely evidence of the allotment of possession of reserve land by a band council to an Indian band member.”[70]

The Appellate Justices agreed, and as LaForme J.A. wrote in his opinion for the Ontario Court of Appeal, barring specific exceptions set-out by Parliament:

Ontario Superior Courts have “plenary and inherent jurisdiction to hear and decide all cases that come before them, regardless of whether the law applicable to a particular case is provincial, federal or constitutional” (…)[71]

The court reiterated that Aboriginal title was sui generis and quite distinct from fee simple,[72] and the appeal was dismissed with costs.

 

Corporation Makivik:

The appellants sought relief from a ruling of the Quebec Superior Court that upheld certain changes to Quebec hunting regulations (altering the start of the hunting season from November 1, 2011, to October 15, 2011, and allowing hunting of Caribou of the George River herd), despite alleged non-adherence to consultation provisions of the James Bay and Northern Quebec Treaty.[73] The Inuit and Cree had signed this Treaty in 1975, with the Naskapi joining them in 1978 through the Northeastern Quebec Treaty.[74] To manage the Treaty,[75] which divided the lands into three categories, a joint committee of 16 members (with complex voting rules and a rotating chairperson position), was established with Aboriginal, provincial, and federal representatives to “study, manage and, in some cases, to monitor and regulate the hunting, fishing and trapping.”[76]

Despite a finding that there had been significant declines in the caribou populations of the George River herd (eastern area of the subject lands) and the Leaf River herd (western area of the subject lands),[77] and a resulting push by indigenous representatives for a complete moratorium on sport hunting,[78] the Quebec Minister of Natural Resources and Wildlife (the “Minister”) responded to deadlock and impasse on the joint committee by taking unilateral action with regard to hunting season start dates, and the number of permits to be issued.[79] As a result, Aboriginal members of the joint committee demanded that the ministry suspend implementation of the stated measures,[80] a federal representative on the joint committee informed the Minister that he had violated the consultation process in several ways,[81] and the appellants launched their suit in Quebec Superior Court for declaratory and injunctive relief.[82] Then, with an Aboriginal representative in the rotating presidency, the joint committee issued a new recommendation that reflected the Aboriginal wishes, which the Minister refused to accept; opting instead to finalize the ministry’s earlier unilateral actions with Ministerial Order MO 2011-026.[83]

The Quebec Superior Court conceded that changes to the hunting season start date were serious matters that required consultation, but then ruled that the “serious and detailed exchanges” taking place on the joint committee sufficiently apprised the Minister of all party positions that any failure to further consult that committee before finalizing the Caribou hunting regulations, as amended, was a mere good faith “procedural” error not warranting any voiding of that action or of those regulations.[84]

Writing for the Quebec Court of Appeal, The Honourable Pierre J. Dalphond, J.C.A., reviewed some of the grounding law of Aboriginal rights and treaty lore in Canada, and rejected the government’s position that the matter was moot due to the end of the disputed hunting season – the offending rules were still in effect, the underlying issues were likely to re-appear, and the parties needed process guidance for their future dealings.[85] Reviewing the legislative framework, Dalphond J.C.A. also concluded that the joint committee should not have been so hastily brushed-aside by the Minister:

I conclude from this analysis of chapter 24 that the parties to the Convention have established exhaustive procedures for the co-management of hunting, fishing, and trapping in the territory, at the heart of which is found the joint committee, a special entity.[86] (Emphasis added).

Furthermore, the Minister’s obligation to once again consult if he has decided to not follow a recommendation of the joint committee clearly shows the obligation to take into consideration the interests of Aboriginal peoples and respond, rather than to impose his vision of affairs, except in those situations that might justify some curtailment of this co-management process.[87]

Citing to Delgamuukw, Dalphond, J.C.A. first noted that sliding scale in the scope of the Crown’s duty of consultation and accommodation,[88] and then he assessed the specific provisions of Chapter 24 to conclude that the Minister had committed numerous breaches of the agreed process – the unilateral pronouncement of Caribou hunting season date changes, inattention to the concerns of Aboriginal representatives on the joint committee, blatantly ignoring a subsequent resolution of the joint committee without any explanation or reasons given, failing to have follow-up consultations after that resolution, and not submitting proposed regulations to the joint committee prior to their adoption.[89] Furthermore, these violations of treaty rights and of the duty to consult could not be justified for reasons of emergency, conservation, or otherwise under s. 35 of the Constitution Act, 1982.[90]

As a remedy, Dalphond, J.C.A., noted that invalidation would cause undue complication, as the impugned regulations had been amended several times since their original passage, and also because sudden changes might spur additional court challenges from affected parties.[91] Hence, he recommended that the Quebec Court of Appeal allow the appeal, reverse the decision below of the Superior Court, and welcome the original motion of the appellants for a declaration that the Minister had violated their rights and the duty to consult; while awarding costs to the appellants and preserving their rights to claim compensation for the damages that they had suffered as a result of these violations.[92]

 

 

THE ROAD AHEAD:

Tsilhqot’in resolved the proper test for Aboriginal title, application of the Crown’s duty to consult and accommodate, and the test for justifications of the breach of Aboriginal rights, being s. 35 of the Constitution Act, 1982.[93] Grassy Narrows considered the respective federal and provincial roles in the “taking-up” of treaty lands, as well as whether paramountcy or interjurisdictional immunity was the proper yardstick to define the limits of their respective jurisdictions.[94] Tyendinaga clarified alleged inconsistencies in the Indian Act and re-affirmed the jurisdiction of Justices of the Superior Courts over all matters properly before them.[95] Finally, Corporation Makivic stands for the dual proposition that the duty to consult cannot be taken lightly, and that historic violations of Aboriginal or treaty rights are not moot issues when the offending legal regimes are still in effect, the circumstances surrounding those past violations are still prevalent, and the parties need the court’s guidance for their future dealings.[96]

This line of cases further clarifies the distinction between Aboriginal rights (whether central or peripheral as “rights short of title”), and Aboriginal title, which is supported by some pre-sovereignty occupation that need not be complete across the entire tract of land (Tsilhqot’in) or unchanging (Delgamuukw).[97]

Conclusive evidence of pre-sovereignty occupation may be difficult to come by. Instead, an aboriginal community may provide evidence of present occupation as proof of pre-sovereignty occupation in support of a claim to aboriginal title. What is required, in addition, is a continuity between present and pre-sovereignty occupation, because the relevant time for the determination of aboriginal title is at the time before sovereignty.[98]

Tsilhqot’in and subsequent caselaw clarified and consolidated the law and the applicable tests to be used when considering questions of Aboriginal title and its elements (Sparrow, Delgamuukw), Aboriginal rights and their contents (Van der Peet, Adams), the spectrum of the Crown’s duty and honour in consultation and accommodation (Haida Nation), which level of government can extinguish Aboriginal rights and/or take-up and further manage Aboriginal lands and treaty compliance (Mikisew, Grassy Narrows), and which level of courts has first instance jurisdiction over matters of Aboriginal law (Tyendinaga). With these better defined rules and parameters, the fact that larger tracts of land may now be subject to central and peripheral aboriginal rights, and that violations of those rights may always be alleged (Ekuanitshit, Wabauskang) should not cause undue consternation to either side. However, this only holds so long as the established processes are followed in good faith, and shortcuts such as those taken in Corporation Makivik, are not resorted to when that critical and mandatory constitutional process (of consultation and accommodation) proves too slow for some. In any case, all matters can always be appropriately reviewed (Dunsmuir, Enge), and judged in accordance with the similarly critical and constitutional process of s. 35 balancing (or Oakes, if applicable), because the courts will not shy-away from declaring violations of rights and processes; that much is crystal clear. Practicality and common sense, though, limit appropriate remedies (Delgamuukw, Tsilhqot’in, Corporation Makivik).

In the words of Lamer, CJ, “[l]et us face it, we are all here to stay.”[99]

More specifically, what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown.  The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. [100]

So, even if it takes time and can get a little bit acrimonious, we “really” have no choice but to all just ………………… get along!

 

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Author:

Ekundayo George is a lawyer and a sociologist. He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling (incorporations, business plans, contracts and non-disclosure agreements, teaming and joint venture agreements), diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S. business advising, outsourcing and cross-border trade, technology contracts, and U.S. financing). See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

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[1] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html<

[2] Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (CanLII), docket number 35379, released July 11, 2014; Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565 (CanLII), docket number C57655, released July 30, 2014; and Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII), docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014.

[3] Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (CanLII), docket number 35379, released July 11, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc48/2014scc48.html?searchUrlHash=AAAAAQAbZ3Jhc3N5IG5hcnJvd3MgZmlyc3QgbmF0aW9uAAAAAAE< This case has itself, already been cited by the Ontario Superior Court on that specific duty to consult, in Wabauskang First Nation v. Minister of Northern Development and Mines et al, 2014 ONSC 4424 (CanLII), court file 585/12, released August 28, 2014. Online: >http://www.canlii.org/en/on/onscdc/doc/2014/2014onsc4424/2014onsc4424.html?searchUrlHash=AAAAAAAAAAEAFDIwMTQgU0NDIDQ4IChDYW5MSUkpAAAAAgAsL2ZyL2NhL2NzYy9kb2MvMjAxNC8yMDE0Y3NjNDgvMjAxNGNzYzQ4Lmh0bWwALC9lbi9jYS9zY2MvZG9jLzIwMTQvMjAxNHNjYzQ4LzIwMTRzY2M0OC5odG1sAQ< In Wabauskang, a panel of the Ontario Divisional Court (appellate), was called upon to review – and quash or suspend – a decision of the Ontario Ministry of Northern Development and Mines to accept a mine Production Closure Plan (PCP) in light of claims by the Wabauskang First Nation of failure to properly consult and accommodate by the Crown. In defining the duty to consult, the court cited in paragraph 199 of its own ruling to Haida Nation v. British Columbia (Ministry of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511¸ at para. 16:

The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples. It is not a mere incantation, but rather a core precept that finds its application in concrete practices.

The Application was dismissed, as the court found that Ontario had both established a reasonable process to determine the degree of consultation required, reasonably carried out that duty in light of any new material arising (Wabauskang, at paras. 202-4), and did not improperly delegate any substantive Crown duty to consult and accommodate, to the mine developer (Wabauskang, at paras. 229-30). The four escalating levels of consultation considered by Ontario and the mine developer, in light of the Haida Nation ruling, were: no consultation, notification only, standard consultation, and enhanced consultation (Wabauskang, at para. 21).

One week prior thereto, the Federal Court of Appeal also dismissed an application for judicial review in another claim of failed and/or insufficient consultation and accommodation, in Council of the Innu of Ekuanitshit v. Canada (Attorney General), 2014 FCA 189 (CanLII), docket number A-196-13, released August 22, 2014.   Online: >http://www.canlii.org/en/ca/fca/doc/2014/2014fca189/2014fca189.html?searchUrlHash=AAAAAAAAAAEAFDIwMTQgU0NDIDQ0IChDYW5MSUkpAAAAAgAsL2ZyL2NhL2NzYy9kb2MvMjAxNC8yMDE0Y3NjNDQvMjAxNGNzYzQ0Lmh0bWwALC9lbi9jYS9zY2MvZG9jLzIwMTQvMjAxNHNjYzQ0LzIwMTRzY2M0NC5odG1sAQ< In Ekuanitshit, the issue was consultations prior to an Order of the Governor in Council approving the federal government’s response to the Report of the Joint Review Panel, Lower Churchill Hydroelectric Generation Project, in Newfoundland and Labrador.   The Innu of Ekuanitshit (hailing into court the federal ministers of Fisheries and Oceans, Transport, and Natural Resources along with the federal Attorney General and Nalcor Energy, the developer), claimed that a federal conclusion that the energy, socioeconomic, and environmental benefits of the hydroelectric plant project outweighed its adverse environmental effects, was reached without sufficient or even proper consultation. The questions presented were whether the Judge at trial had erred in finding: (i) that the actions of the Governor in Council and others were compliant with law; and (ii) that the Crown had not breached its duty to consult and seek accommodation measures on those Project elements likely to have a prejudicial effect on their Aboriginal rights.

The court, however, ruled on the first question at para. 73, that: “(…) the fact that the Governor in Council and responsible authorities exercised their discretion to approve a project whose scope was defined by the minister with the statutory authority to do so tends to favour the reasonableness of the impugned decisions, rather than the reverse. “ And on the second question, it further ruled at para. 122, that:

The appellant has not demonstrated, in the circumstances of this case, that the government neglected its duty to consult prior to the issuance of the order. Therefore, in light of the evidence in the record, I am of the view that the judge did not err in finding that the appellant was consulted in an adequate manner and that the mitigating measures address, for now, its concerns. Indeed, the consultation conducted at this stage, given the strength of the claim and the seriousness of the adverse impact that the government-proposed measure would have on the asserted right, meets “the idea of proportionate balancing” referred to in Haida Nation. (Haida Nation at para. 39; Tsilhqot’in Nation at para. 79).

[4] Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565 (CanLII), docket number C57655, released July 30, 2014. Court of Appeal for Ontario. Online: >http://www.canlii.org/en/on/onca/doc/2014/2014onca565/2014onca565.html?searchUrlHash=AAAAAQAaVHllbmRpbmFnYSBNb2hhd2sgQ291bmNpbCAAAAAAAQ<

[5] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII), docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB<

[6] The Indian Act, R.S.C., 1985, c. I-5. Government of Canada. Online: >http://laws-lois.justice.gc.ca/eng/acts/i-5/<

[7] See Infra, notes 13-14 and accompanying text.

[8] Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), R.S.C. 1985. Government of Canada. Online: >http://laws-lois.justice.gc.ca/eng/Const/index.html<

[9] The Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, C-11 (Charter). Government of Canada. Online: >http://laws-lois.justice.gc.ca/eng/Const/page-15.html<

[10] See e.g. Part 2 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c-11, Infra, note 16.

[11] Constitution Act, 1867. Supra, note 8.

[12] In accordance with this section, the provinces have enacted their various forestry laws and regulations, and the federation has enacted the Indian Oil and Gas Act, R.S.C., 1985, c. I-7, and the Indian Oil and Gas Regulations, 1995, SOR/94-753, as managed by Indian Oil and Gas Canada (IOGC) to regulate the “exploration and development of oil and gas on First Nations Reserve lands in Canada”.   Online: >http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-7/latest/rsc-1985-c-i-7.html< (Act); >http://www.canlii.org/en/ca/laws/regu/sor-94-753/latest/sor-94-753.html< (Regulations).

[13] Numbered Treaties Key, Part f, Chapter 6.1.4 – Aboriginal Peoples and the Growing Nation of Canada.

Government of Manitoba, Department of Education and Advanced Learning, K-12 Curriculum, Grade 6 Social Studies Blackline Masters. Online: >http://www.edu.gov.mb.ca/k12/cur/socstud/foundation_gr6/blms/<

[14] Id.

[15] The Indian Act. Supra, note 6.

[16] The Canadian Charter of Rights and Freedoms. Supra, note 9.

[17] Schedule B, Part 2 to the Canada Act 1982, 1982, c. 11 (U.K.). “Rights of the Aboriginal Peoples of Canada”. This is not part of the Canadian Charter of Rights and Freedoms, but it is an integral part of the Canada Act, 1982. Government of Canada. Online: >http://laws-lois.justice.gc.ca/eng/Const/page-15.html<

[18] See e.g. R v. Oakes, Infra note 19, at para. 65:

The rights and freedoms guaranteed by the Charter are not, however, absolute. It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance. For this reason, s. 1 provides criteria of justification for limits on the rights and freedoms guaranteed by the Charter. These criteria impose a stringent standard of justification, especially when understood in terms of the two contextual considerations discussed above, namely, the violation of a constitutionally guaranteed right or freedom and the fundamental principles of a free and democratic society.

[19] R v. Oakes, 1986 CanLII 46 SCC, [1986] 1 S.C.R. 103, at paras. 69-70, docket number 17550, released February 28, 1986. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1986/1986canlii46/1986canlii46.html<

[20] A fuller discussion of the sub-elements of this test and its application in Canada’s courts since it was created, is beyond the scope of this blog post. However, it is important to note here, that there is a marked difference between the Oakes test for justification of constitutional infringements, and the test on judicial review for whether the decision of a lower court or tribunal should be left to stand. The latter standard of review test – with a standard of “correctness” (on questions of law – including within the Aboriginal Law context, the existence and extent of a duty to consult), and a standard of “reasonableness” (on questions of fact, and questions of mixed law and fact – including within the Aboriginal Law context, the actual process and results of consultation), was originally articulated in Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII). However, it was more recently and succinctly encapsulated in Enge v. Mandeville et. al., 2013 NWTSC 33, (CanLII). There, the court cited to paras. 47-50 of Dunsmuir, in stating in its own para. 22, on reasonableness, that:

The reasonableness standard is one of deference and involves the review and analysis of the decision-maker’s reasoning process and decision.  The question is not whether the decision is correct but whether it is within a range of acceptable and rational outcomes. The focus is on the outcome and on the process of articulating the reasons.  Applying the reasonableness standard involves a search for justification, transparency and intelligibility in the decision-making process.

Thence, it further stated at its own para. 23, on correctness:

The correctness standard does not involve deference to the decision-maker and a reviewing court will undertake its own analysis of the issues.  If the court does not agree with the decision, it will provide the correct answer.  The question is whether the decision was correct.

See generally, Enge v. Mandeville et al., 2013 NWTSC 33 (CanLII), at paras. 22-28, docket number S-1-CV-2012000002, released June 20, 2013 (corrected June 27, 2013). Supreme Court of the Northwest Territories. Online: >http://www.canlii.org/en/nt/ntsc/doc/2013/2013nwtsc33/2013nwtsc33.html<; Dunsmuir v. New Brunswick, 2008 SCC 9, (CanLII), docket number 31459, released March 7, 2008. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2008/2008scc9/2008scc9.html<

[21] Forest Act, R.S.B.C. 1996, c. 157. Online: >http://www.bclaws.ca/Recon/document/ID/freeside/96157_00<

[22] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html<

[23] See generally, The Canadian Encyclopedia. Tsilhqot’in (Chilcotin) – Contemporary Activities. Visited September 24, 2014. Online: >http://www.thecanadianencyclopedia.ca/en/article/chilcotin-tsilhqotin/< These 6 bands are: the ‘Esdilagh First Nation (Alexandria Band); Tsi Del Del First Nation (Alexis Creek First Nation); Yunesit’in First Nation (Stone Band); Tl’etinqox-t’in First Nation (Anaham Band); Tl’esqox (Toosey Band); and the Xeni Gwet’in First Nation (Nemiah Band), which peoples prevail throughout the Chilcotin Plateau of west-central British Columbia.

[24] Tsilhqot’in, supra note 22 at para. 3.

[25] Id. at paras. 3-4.

[26]

In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.

Delgamuukw v. B.C., 1997 CanLII 302 (SCC) at para. 143, [1997] 3 SCR 1010, released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

[27] Tsilhqot’in, supra note 22 at paras. 5-7.

[28] Id. at para. 27.

[29] Id. at para. 8.

[30] Id. at para. 28.

[31]

The picture which emerges from Adams is that the aboriginal rights which are recognized and affirmed by s. 35(1) fall along a spectrum with respect to their degree of connection with the land.

At the one end, there are those aboriginal rights which are practices, customs and traditions that are integral to the distinctive aboriginal culture of the group claiming the right. However, the “occupation and use of the land” where the activity is taking place is not “sufficient to support a claim of title to the land” (at para. 26 (emphasis in original)). Nevertheless, those activities receive constitutional protection.

In the middle, there are activities which, out of necessity, take place on land and indeed, might be intimately related to a particular piece of land. Although an aboriginal group may not be able to demonstrate title to the land, it may nevertheless have a site-specific right to engage in a particular activity.

At the other end of the spectrum, there is aboriginal title itself. As Adams makes clear, aboriginal title confers more than the right to engage in site-specific activities which are aspects of the practices, customs and traditions of distinctive aboriginal cultures. Site-specific rights can be made out even if title cannot. What aboriginal title confers is the right to the land itself. [With additional spacing, here].

Delgamuukw v. B.C., 1997CanLII 302 (SCC) at para. 138, [1997] 3 SCR 1010, per Lamer, C.J., citing to the Court’s earlier ruling in Adams (R v. Adams, 1996 CanLII 169 (SCC)). Released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html< See also R v. Adams, 1996 CanLII 169 (SCC), [1996] 3 SCR 101, released October 3, 1996. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1996/1996canlii169/1996canlii169.html<

[32] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), at para. 8, [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html<

[33] Id. at para. 61.

[34]

What remains, then, of the Crown’s radical or underlying title to lands held under Aboriginal title? The authorities suggest two related elements — a fiduciary duty owed by the Crown to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35 of the Constitution Act, 1982.  Id. at para. 71.

[35]

The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.   Id. at para. 76.

[36] Interestingly, the 3-part test actually applied here by the S.C.C., from Sparrow, differs from the more recent (at that time) 2-part test as later enunciated in Delgamuukw.

The test of justification has two parts, which I shall consider in turn. First, the infringement of the aboriginal right must be in furtherance of a legislative objective that is compelling and substantial.

Delgamuukw, supra note 31, at para. 161.

The second part of the test of justification requires an assessment of whether the infringement is consistent with the special fiduciary relationship between the Crown and aboriginal peoples.

Delgamuukw, supra note 31, at para. 162.

[37] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), at para. 77, [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html< citing to R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 SCR 1075. Released May 31, 1990. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1990/1990canlii104/1990canlii104.html<

[38] Id. at para. 113.

[39] Although the Aboriginal group with an ownership interest has the exclusive right to occupy and use the land, it cannot be used in such a way – whether by that group or by the Crown – as to diminish the interest of future generations in that “group title” held or claimed. As stated by Lamer, C.J., when speaking of the impacts of an altered usage during a period of continuous and exclusive Aboriginal occupation, on any claim for Aboriginal title:

I would like to make it clear that the fact that the nature of occupation has changed would not ordinarily preclude a claim for aboriginal title, as long as a substantial connection between the people and the land is maintained. The only limitation on this principle might be the internal limits on uses which land that is subject to aboriginal title may be put, i.e., uses which are inconsistent with continued use by future generations of aboriginals.

Delgamuukw v. B.C., 1997CanLII 302 (SCC) at para. 154, [1997] 3 SCR 1010, released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

[40] Supra note 37, at paras. 91-2.

[41] Id. at para. 96.

[42] Delgamuukw, supra note 39, at para. 179. See also Tsilhqot’in, supra note 37 at paras. 105-6.

[43]Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), at para. 104, [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html< citing to R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 SCR 1075. Released May 31, 1990. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1990/1990canlii104/1990canlii104.html<

[44] Id. at para. 115. [Emphasis added].

[45] Tsilhqot’in, supra note 43, at para. 130.

[46] Id. at para. 131.

[47] Tsilhqot’in, supra note 43, at paras. 135, 151-2.

[48] Id. at para. 153. Despite its having been specifically alluded to in Delgamuukw, (as reproduced verbatim below), it is interesting to note that the S.C.C. made no mention whatsoever of, or provision for, compensation on account of the infringement. I surmise that the issue may well have been left un-pleaded, or already settled.

In keeping with the duty of honour and good faith on the Crown, fair compensation will ordinarily be required when aboriginal title is infringed. The amount of compensation payable will vary with the nature of the particular aboriginal title affected and with the nature and severity of the infringement and the extent to which aboriginal interests were accommodated.

Delgamuukw v. B.C., 1997CanLII 302 (SCC) at para. 169, [1997] 3 SCR 1010, released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

[49] Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (CanLII), docket number 35379, released July 11, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc48/2014scc48.html?searchUrlHash=AAAAAQAbZ3Jhc3N5IG5hcnJvd3MgZmlyc3QgbmF0aW9uAAAAAAE<

[50] Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565 (CanLII), docket number C57655, released July 30, 2014. Court of Appeal for Ontario. Online: >http://www.canlii.org/en/on/onca/doc/2014/2014onca565/2014onca565.html?searchUrlHash=AAAAAQAaVHllbmRpbmFnYSBNb2hhd2sgQ291bmNpbCAAAAAAAQ<

[51] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII), docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB<

[52] See supra note 14, and accompanying text. See also Corporation Makivik, at paras. 24, 26. The Wabauskang Nation joined Grassy Narrows First Nation in the Appeal, as their own traditional territory includes lands that run through the Keewatin tract. Alberta, British Columbia, Manitoba, Saskatchewan, and several other First Nations were also represented as Intervenors on the Appeal.

[53] Supra note 51, at para. 18

[54] Id. at paras. 2-3.

[55] Id. at para. 2.

[56] See text, supra, at The Constitution Act, 1867.

[57] Supra note 51, at para 4.

[58] Id. at paras. 12, 50. The Ontario trial court, Ontario Court of Appeal, and Supreme Court of Canada all agreed on this limitation.

[59] Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (CanLII) at para. 30, docket number 35379, released July 11, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc48/2014scc48.html?searchUrlHash=AAAAAQAbZ3Jhc3N5IG5hcnJvd3MgZmlyc3QgbmF0aW9uAAAAAAE<

[60] Id. at 53. See also, Delgamuukw v. B.C., 1997CanLII 302 (SCC), [1997] 3 SCR 1010, released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

Where the federal Crown has already extinguished Aboriginal rights by Treaty (being a sole and exclusive Constitutional right of the federal Crown), or where there has been a surrender of Aboriginal title (which again, can only go to the federal Crown as provided by law), then the provincial Crown takes title to the land except as otherwise provided. This provincial right was reinforced in Grassy Narrows with an actual transfer of the subject lands to Ontario having occurred subsequent to the enactment of that subject Treaty 3 of 1873:

Thus, although on surrender of aboriginal title the province would take absolute title, jurisdiction to accept surrenders lies with the federal government. The same can be said of extinguishment — although on extinguishment of aboriginal title, the province would take complete title to the land, the jurisdiction to extinguish lies with the federal government. Delgamuukw, at para. 175.

For additional background on the limits to provincial taking-up of treaty lands, see also Mikisew Cree First nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 (CanLII), [2005] 3 S.C.R. 388, released November 24, 2005. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2005/2005scc69/2005scc69.html<

[61] See supra, note 15, The Indian Act, and accompanying text.

  1. Reserve lands are not subject to seizure under legal process.

89(1). Subject to this Act, the real and personal property of an Indian

or a band situated on a reserve is not subject to charge, pledge,

mortgage, attachment, levy, seizure, distress or execution in favour

or at the instance of any person other than an Indian or a band.

[62] Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565 (CanLII) at para. 3, docket number C57655, released July 30, 2014. Court of Appeal for Ontario. Online: >http://www.canlii.org/en/on/onca/doc/2014/2014onca565/2014onca565.html?searchUrlHash=AAAAAQAaVHllbmRpbmFnYSBNb2hhd2sgQ291bmNpbCAAAAAAAQ<

[63] Id. at paras. 5-7.

[64] Id. at paras. 8-11.

[65] Id. at paras. 9-15.

[66] Id. at paras. 16-18.

[67] Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565 (CanLII) at para. 19, docket number C57655, released July 30, 2014. Court of Appeal for Ontario. Online: >http://www.canlii.org/en/on/onca/doc/2014/2014onca565/2014onca565.html?searchUrlHash=AAAAAQAaVHllbmRpbmFnYSBNb2hhd2sgQ291bmNpbCAAAAAAAQ<

[68] See supra, note 61.

[69] Supra note 67, at paras. 21-31.

[70] Id. at para. 21.

[71] Id. at para 40, citing to Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at paras. 44-45.

[72] Id. at para 61, citing with approval to Delgamuukw v. B.C., 1997 CanLII 302 (SCC) at para. 115, [1997] 3 SCR 1010, per Lamer, C.J. Released December 11, 1997. Court of Appeal for Ontario. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

See also Delgamuukw, at para. 125:

The content of aboriginal title contains an inherent limit that lands held pursuant to title cannot be used in a manner that is irreconcilable with the nature of the claimants’ attachment to those lands. This limit on the content of aboriginal title is a manifestation of the principle that underlies the various dimensions of that special interest in land — it is a sui generis interest that is distinct from “normal” proprietary interests, most notably fee simple.

See also supra note 60. The Ontario Court of Appeal also cited Tsilhqot’in for delineating the content and scope of Aboriginal title, which leaves only a residual interest to the Crown:

In simple terms, the title holders have the right to the benefits associated with the land — to use it, enjoy it and profit from its economic development. As such, the Crown does not retain a beneficial interest in Aboriginal title land.

Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII) at para. 70, [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html<

Also related to these actual “title rights”, are certain “rights short of title”, as succinctly identified in Delgamuukw by Lamer, C.J.:

These rights will likely be intimately tied to the land and may permit a number of possible uses. However, unlike title, they are not a right to the land itself. Rather, as I have suggested, they are a right to do certain things in connection with that land. If, for example, it were established that the lands near those subject to a title claim were used for hunting by a number of bands, those shared lands would not be subject to a claim for aboriginal title, as they lack the crucial element of exclusivity. However, they may be subject to site-specific aboriginal rights by all of the bands who used it. This does not entitle anyone to the land itself, but it may entitle all of the bands who hunted on the land to hunting rights. Hence, in addition to shared title, it will be possible to have shared, non-exclusive, site-specific rightsDelgamuukw, at para. 159.

[73] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII), docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB< See also James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-77, c. 32. Online: >http://www.canlii.org/en/ca/laws/stat/sc-1976-77-c-32/latest/sc-1976-77-c-32.html<

[74] Id. Corporation Makivik, at para. 10. See also An Act Approving the Agreement Concerning James Bay and Northern Québec, CQLR c C-67. Online: >http://www.canlii.org/en/qc/laws/stat/cqlr-c-c-67/latest/cqlr-c-c-67.html<

[75] The Treaty is referred to as a “Convention” in the original French text of this judgement. Chapter 24 of that Treaty – Hunting, Fishing and Trapping, covers over 35 pages and is further referred to in this post as “Chapter 24”. See e.g. Infra, note 86 and accompanying text.

[76] Corporation Makivik, supra note 74, at para. 11-13.

[77] Id. at paras. 14-17.

[78] Id. at paras. 21, 30.

[79] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII) at paras. 32-34, docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB<

[80] Id. at para. 35.

[81] Id. at para. 36.

[82] Id. at para. 37.

[83] Id. at paras. 38-41.

[84] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII) at paras. 52-45, docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB<

[85] Id. at paras. 51-57.

[86] Id. at para. 67.

[87] Id. at para. 71.

[88] Delgamuukw v. B.C., 1997 CanLII 302 (SCC) at para. 168, [1997] 3 SCR 1010, released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.

[89] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII) at paras. 87-93, docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB<

[90] Id. at paras. 95-99. See also supra, note 17 and accompanying text.

[91] Id. at paras. 100-107.

[92] Id. at paras 108-9.

[93] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), [2014] S.C.J. No. 44, docket number 34986, released June 26, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc44/2014scc44.html<

[94] Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (CanLII), docket number 35379, released July 11, 2014. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/2014/2014scc48/2014scc48.html?searchUrlHash=AAAAAQAbZ3Jhc3N5IG5hcnJvd3MgZmlyc3QgbmF0aW9uAAAAAAE<

[95] Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565 (CanLII), docket number C57655, released July 30, 2014. Court of Appeal for Ontario. Online: >http://www.canlii.org/en/on/onca/doc/2014/2014onca565/2014onca565.html?searchUrlHash=AAAAAQAaVHllbmRpbmFnYSBNb2hhd2sgQ291bmNpbCAAAAAAAQ<

[96] Corporation Makivik c. Québec (Procureure générale) 2014 QCCA 1455 (CanLII), docket numbers 500-09-022212-112, and 500-09-022213-110 (500-17-064940-110), released August 14, 2014. Court of Appeal of Quebec. Online: >http://www.canlii.org/fr/qc/qcca/doc/2014/2014qcca1455/2014qcca1455.html?searchUrlHash=AAAAAQATY29ycG9yYXRpb24gbWFraXZpawAAAAAB<

[97] Delgamuukw v. B.C., 1997 CanLII 302 (SCC) at para. 124, [1997] 3 SCR 1010, released December 11, 1997. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1997/1997canlii302/1997canlii302.html<

In conclusion, the content of aboriginal title is not restricted to those uses which are elements of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.

[98] Id. at para. 152.

[99] Id. at para. 186.

[100] R v. Van der Peet, 1996 CanLII 216 (SCC) at para. 31, [1996] 2 SCR 507, released August 21, 1996. Supreme Court of Canada. Online: >http://www.canlii.org/en/ca/scc/doc/1996/1996canlii216/1996canlii216.html?searchUrlHash=AAAAAQAQciB2IHZhbiBkZXIgcGVldAAAAAAB <

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