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PAGE 14 CaseLawLaw FEDERAL COURT Aboriginal Peoples BANDS 1985 amendments to Indian Act (Can.) allowing adoption in accordance with Indian custom did not appear to apply retroactively Application for judicial review arising from internal dispute re- garding membership of thirteen individuals of the Lucky Man Cree Nation Band. Applicants claimed their membership was taken away in contravention of the Indian Act (Can.), and of the Membership Code of the Lucky Man Band. Applicants unable to vote in 2004 Lucky Man Band election. All applicants children or grandchildren of now de- ceased Lucky Man Band mem- ber ("adoptee"). Adoptee born into different band, but raised by maternal grandfather in Lucky Man Band. Application for judi- cial review partially granted. De- cision to exclude applicants from Lucky Man Band list quashed. Matter of applicants' member- ship in Lucky Man Band remit- ted to chief and council to be dealt with in accordance with Membership Code and Indian Act. Under former Indian Act, Indian status and band mem- bership could not be gained as a result of Indian custom adop- tion. 1985 amendments to In- dian Act allowed adoption in accordance with Indian custom, but did not appear to apply ret- roactively. Evidence not clear on whether adoptee legally adopted by maternal grandfather. Court should also not intervene at this stage because it has no jurisdic- tion to substitute own decision to original decision maker, espe- CROWN RELATIONSHIP Crown met duty to consult respecting transfer of land Applicants, three communities of Sto:lo Nation, had Indian Re- serves within municipal bound- aries of City of Chilliwack close to former Canadian Forces Base ("CFB") at Chilliwack. Respon- dent Canada Lands Company, wholly owned subsidiary of Can- ada Lands Company ("CLC"), Crown corporation and agent of Crown, purchased properties at fair market value from fed- eral government for purpose of improving, managing or selling properties in order to achieve optimal fi nancial and commu- nity value for both local commu- nities and Crown. Lands at issue were two parcels of former CFB Chilliwack. In 1999 Canada rejected applicants' claim assert- ing that CFB Chilliwack formed part of two Indian Reserves. Fol- lowing announcement of pend- ing closure of CFB Chilliwack, applicants fi led statement of intent to negotiate treaty with respect to traditional territo- ries which included all of CFB Chilliwack. Despite meetings between Canada and applicants, no agreement reached. Disposal strategy for former CFB Chilli- wack lands approved by Treasury Board and substantially all of re- maining CFB Chilliwack lands conveyed to CLC. When appli- cants learned that CLC planned to sell land to Chilliwack School District they sought consulta- tion with CLC. CLC stated it would not consult as it under- cially when decision comes from elected body. Okemow-Clark v. Lucky Man Cree Nation (July 18, 2008, F.C., de Montigny J., File No. T-1805- 05) Order No. 008/224/082 (30 pp.). November 10, 2008 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. stood that Treasury Board satis- fi ed with extensive consultation that occurred prior to approval of transfer. Applicants' judicial review application of Treasury Board decision dismissed. Scope and content of duty to consult proportionate to preliminary as- sessment of strength of case sup- porting existence of right or title, and to seriousness of potentially adverse effect upon right or title claimed. Applicants put forth evidence of pre-sovereignty use and occupation but evidence not clear that applicants occupied lands with suffi cient regularity and exclusivity to claim title. Al- though decision to convey rep- resented infringement of poten- tial Aboriginal title, damage was compensable. Crown's duty to consult more than minimal and required good faith consultation and process aimed at addressing applicants' concerns. Canada engaged in signifi cant consulta- tion with applicants which rose at times to level of deep con- sultation. Canada attempted to address Aboriginal concerns. Although no agreement reached, process consistent with mainte- nance of Crown's honour. Un- necessary to decide whether CLC agent of Crown bound to consult with applicants as court did not have jurisdiction over CLC. Tzeachten First Nation v. Cana- da (Attorney General) (July 30, 2008, F.C., Tremblay-Lamer J., File No. T-754-07) Order No. 008/253/124 (37 pp.). Customs And Excise EXCISE TAX Section 289 of Excise Tax Act (Can.) is similar to s. 231.2 of Income Tax Act (Can.), which requires prior judicial authorization for requests concerning unnamed third parties Application for order directing respondent to provide informa- tion requested by requirement issued under Excise Tax Act (Can.) ("ETA"), related to credit card issued by respondent. Ap- plicant sought cardholder name, address, business, copy applica- tion, and names of supplemen- tary cardholders for purpose of determining what obligations or refund entitlement existed in respect of company which had been investigated and which had employed a supplementary cardholder. Company was in- vestigated by Canada Revenue Agency for failing to collect GST on cigarettes sold and delivered to status Indian operating res- taurant on reserve. Investiga- tion concluded that alleged sales and deliveries could not have occurred and audit completed. Company was advised it would be assessed with respect to un- collected GST on tobacco sales during audit period. In order for cigarettes to be exempt from GST, vendor must provide evi- dence of sale to status Indian re- siding on reserve. Supplementa- ry cardholder was employee who delivered cigarettes for the com- pany but allegedly engaged in cigarette purchases and sales not authorized by company. Appli- cant unable to obtain credit card statements relating to cigarette purchases by supplementary cardholder. Respondent declined to process requirement for infor- mation citing s. 289(2) and (3) of ETA which require judicial authorization before production of information on unnamed per- son. Much of information being sought would relate to unnamed primary cardholder rather than to supplementary cardholder who was subject of investigation. Application granted. Minister has broad powers to inspect, audit and examine tax payers' records and to obtain informa- tion required to apply provi- sions of Income Tax Act (Can.) ("ITA"), and ETA. Court agreed that s. 289 of ETA was similar to s. 231.2 of ITA, which also requires prior judicial authori- zation for requests concerning unnamed third parties. Purpose of provision is to prevent "fi sh- ing" by requiring Minister to satisfy judge that requirement has been issued to verify compli- ance by person who has a duty under the Act. Court applying principle of judicial comity with respect to Federal Court of Ap- peal interpretation of s. 231.7 of ITA which found that where unnamed persons not themselves under investigation, but their names are necessary for investiga- tion of known party, third party served with a requirement must provide information, including name of unnamed person. Canada v. Amex Bank of Canada (Aug. 27, 2008, F.C., Frenette J., File No. T-2208-07) Order No. 008/253/134 (27 pp.). FEDERAL COURT OF APPEAL Aboriginal Peoples LAND CLAIMS Motions judge made palpable and overriding error in granting interlocutory injunction restraining transfer of properties Canada did not recognize that Musqueam Indian Band had le- gal entitlement to properties in question. Two downtown offi ce buildings in Vancouver. Canada sought to move out of business of Looking for an easier way to attract attention? it's easy. www.lawtimesnews.com JobsInLaw_sailing_half.indd 1 11/5/08 2:50:47 PM

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