Enforcing Indigenous laws in Canadian courts

A recent Ontario Court of Appeal case has addressed the right of a litigant to assert that a family dispute is governed by the Indigenous laws of the Haudenosaunee: Beaver v. Hill, 2018 ONCA 816.

The appeal arose in the context of a family law dispute between two Haudenosaunee persons. The claimant had sought custody of the couple’s child and child and spousal support from the respondent. The respondent argued that Ontario’s family law legislation interfered with their right under s. 35 of the Constitution to have the family law dispute decided through Haudenosaunee governance processes. The motion judge struck out the respondent’s constitutional defenses on the basis he lacked standing to advance them and that they were non-justiciable. These were the primary issues on appeal to the Ontario Court of Appeal.

In the lower court: In December 2015, the claimant applied for custody and child and spousal support from the respondent. The respondent filed a conventional defence to this claim and, subsequently, filed a notice of constitutional question and amended answer advancing challenging the application of Ontario’s family law regime and the jurisdiction of the Ontario Superior Court over the parties’ family law dispute. The claimant moved for an order striking the respondent’s amended answer and staying their constitutional argument. The motions judge granted these orders, finding the respondent lacked standing to advance the constitutional arguments and that those arguments, characterized as a “broad claim” to self-governance, were non-justiciable. The respondent appealed.

In the appellate court: The appellate decision overturned the motions judge on this issue, finding essentially that it was inappropriate to preclude the respondent’s constitutional argument at such an early stage of the litigation (para. 64). On the standing issue, the court found that the respondent’s constitutional argument may fall into the category of Aboriginal and treaty rights which adhere to individuals (para. 41). The court acknowledged that it is a “live issue” as to how individual and collective aspects of Aboriginal and treaty rights should be resolved (para. 34), but took instruction from Behn v. Moulton Contracting, 2003 SCC 26 at para 35 that “collective aspect of Aboriginal and treaty rights… may sometimes be assigned to or exercised by individual members of Aboriginal communities” and that “it could be said that these rights might belong to them or that they have an individual aspect regardless of their collective nature” (para. 37).

Regarding justiciability, the court again found that the record before it did not support a finding of non-justiciability. The court found that the Respondent’s constitutional argument was “not exclusively a claim to self-government.” The Respondent’s claim could be justiciable if he is able to prove the existence of the alleged Haudenosaunee family dispute system and that it qualifies as a protected right under s. 35 (para. 65). Though obiter, the court also commented “recognition of spheres of jurisdiction is a form of reconciliation,” which could allow for the development of Aboriginal self-governance rights akin to the theory of Aboriginal sovereignty over certain areas recognized by American jurisprudence.

The court also flagged “serious, perhaps insuperable” obstacles regarding the Respondent’s constitutional claim, noting that the Respondent had led no evidence on the existence of Haudenosaunee legal systems, nor addressed how the Claimant could be subject to an alleged Haudenosaunee legal system she did not consent to (paras. 66-68). Outside of this decision, subsequent interlocutory decisions have been highly critical of the Respondent’s litigation conduct. In 2018 ONSC 7138, for instance, Pazaratz J. found at para. 42 that he engaged in a legal “war of attrition” by “creating as many legal hurdles as possible.”

Beaver v. Hill, 2018 ONCA 816

Will Pollitt