Ermineskin Indian Band v. Canada (Minister of Indian Affairs and Northern Development), 2008 FC 741

• Judge: Dawson, J.
• Court: Federal Court (Canada)
• Case Date: June 16, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FC 741;(2008), 334 F.T.R. 126 (FC)

Ermineskin Indian Band v. Can. (2008), 334 F.T.R. 126 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. JN.025

Ermineskin Tribe (applicant) v. Her Majesty the Queen in Right of Canada, as represented by Indian Affairs and Northern Affairs Canada (respondent)

(T-2056-07; 2008 FC 741)

Indexed As: Ermineskin Indian Band v. Canada (Minister of Indian Affairs and Northern Development)

Federal Court

Dawson, J.

June 16, 2008.

Summary:

On November 22, 2007, Indian and Northern Affairs Canada (INAC) notified the Ermineskin Tribe's Council that its income assistance program was not being delivered in accordance with the terms and conditions of the Comprehensive Funding Agreement (CFA) between INAC and Ermineskin. Ermineskin was told that the funding would be suspended until proper program administration was restored. Ermineskin applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See first Indians, Inuit and Métis - Topic 6334 ].

Indians, Inuit and Métis - Topic 6334

Government - Self-government - Co-management agreements or third party management - On November 22, 2007, Indian and Northern Affairs Canada (INAC) notified the Ermineskin Tribe's Council that its income assistance program was not being delivered in accordance with the terms and conditions of the Comprehensive Funding Agreement (CFA) between INAC and Ermineskin - Ermineskin was told that the funding would be suspended until proper program administration was restored - Ermineskin applied for judicial review - The Federal Court discussed the standard of review - In accordance with Dunsmuir v. N.B. (SCC 2008), the court looked first to the prior case law which established that deference was to be accorded to decisions of this nature - The court also considered the factors listed by the Supreme Court in Dunsmuir, noting that "in the present case, the decision is not protected by a privative clause, the nature of the decision touches upon the Minister's discretion to allow a First Nation to administer a publicly-funded program, the Minister has expertise working with First Nations and administering assistance programs, and the question of the existence of any default under the CFA is one of mixed fact and law that is very heavily informed by matters of fact. These factors, considered together, point to the standard of reasonableness" - See paragraphs 38 to 43.

Indians, Inuit and Métis - Topic 6334

Government - Self-government - Co-management agreements or third party management - In April 2007, the Ermineskin Tribe entered into a Comprehensive Funding Agreement (CFA) with the Indian and Northern Affairs Canada (INAC), whereby Ermineskin agreed to deliver an income assistance program and be reimbursed by INAC - INAC had concerns about how the program was being delivered and at a meeting between INAC and Ermineskin on October 23, 2007, it was agreed that the INAC would conduct an onsite review at the reserve - On November 22, 2007, INAC notified the Ermineskin Tribe's Council that it had "serious concerns" and funding would be suspended until proper program administration was restored - Ermineskin applied for judicial review, arguing that INAC's actions during the fall of 2007 constituted a formal "program review" which required INAC to follow the procedures outlined in the INAC Alberta Region Social Development Income Support Policy Manual - The Federal Court found as a fact that INAC did not undertake on October 23, 2007, to conduct a formal program review and accordingly, it was not required to comply with the Manual - Rather, what was conducted was an informal review of Ermineskin's files that was agreed upon by the parties and intended to be conducted jointly - See paragraphs 44 to 58.

Indians, Inuit and Métis - Topic 6334

Government - Self-government - Co-management agreements or third party management - On November 22, 2007, Indian and Northern Affairs Canada (INAC) notified the Ermineskin Tribe's Council that its income assistance program was not being delivered in accordance with the terms and conditions of the Comprehensive Funding Agreement (CFA) between INAC and Ermineskin - Ermineskin was told that, after the release of basic needs funding for the month of December 2007, such funding would be suspended until proper program administration was restored - Ermineskin applied for judicial review - The Federal Court dismissed the application - The INAC's decision that the program was not being delivered in accordance with the CFA was reasonable as was the choice of remedy - See paragraphs 59 to 77.

Cases Noticed:

Ermineskin Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al. (2005), 269 F.T.R. 188 (F.C.), refd to. [para. 10].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1 (S.C.C.), refd to. [para. 38].

Pikangikum First Nation v. Canada (Minister of Indian Affairs and Northern Development) (2002), 224 F.T.R. 215 (T.D.), refd to. [para. 42].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 94].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 95].

Authors and Works Noticed:

Lux, Maureen Katherine, Medicine that Walks: Disease, Medicine and Canadian Plains Native People, 1880-1940 (2001), generally [para. 10].

Counsel:

Priscilla Kennedy, for the applicant;

Michael Roberts, for the respondent.

Solicitors of Record:

Davis LLP, Edmonton, Alberta, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard in Vancouver, British Columbia, on May 28 and 29, 2008, by Dawson, J., of the Federal Court, who delivered the following reasons for judgment on June 16, 2008.