In an effort to support our clients and all Indigenous communities across Canada, JFK Law will be posting weekly updates briefly highlighting legal issues, governance concerns, and available supports and programs arising from the COVID-19 pandemic for Indigenous persons and communities.
COVID-19: Indigenous Community Support Fund
The Government of Canada has announced a $305 million Indigenous Community Support Fund for First Nations, Inuit and Métis communities and regional, urban and off-reserve Indigenous organizations. First Nations, Inuit and Métis communities do not need to apply to access these funds. Funds will automatically flow through existing agreements. Regional, urban and off-reserve Indigenous organizations must apply and the application deadline was April 13, 2020. Read more in our post specifically on this funding, here.
For more information on COVID-19 initiatives from Indigenous Services Canada see their COVID-19 website.
Funding for Indigenous Businesses
The Government of Canada has announced $306.8 million in funding to support small and medium sized Indigenous businesses, and to support Aboriginal Financial Institutions that offer financing to these businesses. The funding will be in the form of short-term, interest-free loans and non-repayable contributions through Aboriginal Financial Institutions. The funding will be available to Indigenous businesses unable to access the government’s existing COVID-19 support measures. The funding will be administered by the Nation Aboriginal Capital corporations Association and the Métis capital corporations in partnership with Indigenous Services Canada, however details with respect to the application process have not yet been released. More information can be found here.
Federal Supports for Individuals and Businesses
In addition to the community and Indigenous business supports available, Indigenous individuals and businesses can access the general supports for individuals and businesses recently announced by the federal government including the Canada Emergency Response Benefit for workers who have lost income due to COVID-19. However, many Indigenous businesses may not qualify for the general business supports because of their legal structure, and if that is the case should look to the funding for Indigenous businesses described above. More information is available on the Government of Canada website Canada’s COVID-19 Economic Response Plan.
At Home on the Land Program
The Government of the Northwest Territories and Indigenous Services Canada have announced an agreement to provide funding to support Indigenous families who want to be out on the land to maintain physical distancing during the COVID-19 pandemic. The funding will flow through Indigenous governments in the NWT. More information is available here.
Payment Deferrals for Ministerial Loan Guarantees
Ministerial Loan Guarantees are provided by Indigenous Services Canada to secure mortgages for housing on reserve. During the COVID-19 pandemic, borrowers with mortgages secured with Ministerial Loan Guarantees can negotiate mortgage payment deferrals with their lenders, just like other borrowers. No extra approval from ISC is required unless the terms and conditions of the deferral exceed the Ministerial Loan Guarantee. More information is available here and here.
In the early days of the COVID-19 pandemic, many Bands were concerned about upcoming election dates for Council and the dangers of holding in-person elections when communities are supposed to be practicing physical distancing. Early on, the Government of Canada indicated elections must proceed, but with additional safeguards. Canada has now reversed that position, and on April 7 brought into force regulations using section 73(1)(f) of the Indian Act – which gives the government power to make regulations “to prevent, mitigate and control the spread of diseases on reserves” – that allow Councils to adopt a Band Council Resolution (BCR) within 90 days of the anticipated election date extending current Chief and Council terms for up to 6 months, and if needed, extended again up to an additional 6 months. The regulations are not available online. We recommend any Bands facing imminent election dates request a copy from ISC.
Evictions on Reserve
COVID 19 has had a significant financial toll on the lives of many Canadians. Statistics Canada has reported that: “The employment decline in March was larger than in any of the three significant recessions experienced since 1980.” Since the pandemic started earlier this year, the unemployment rate has risen to 7.8 percent as more than 1 million jobs have been lost.
Recognizing the financial difficulties facing many people during this time, several provinces and territories have issued assistance to tenants of rental housing. British Columbia, for example, has introduced a rental supplement of up to $500 a month per household, suspended evictions and put a freeze on rent for the duration of the state of emergency. British Columbia has directly amended its residential tenancy laws, which are in effect for the duration of the state of emergency.
In the face of these actions, First Nations may be wondering if and how these measures apply on reserve. In short, they don’t. In general, residential tenancy laws relating to possession or occupation of land do not apply on reserve. Where a province has amended its residential tenancy laws in response to the pandemic, those changes will not apply to First Nation reserves. However, First Nations may adopt their own resolutions, laws, bylaws or policies suspending evictions and rent increases during the crisis under the Indian Act.
However, these measures will apply to any Indigenous people living off reserve, in rental housing in BC.
Restricting Access to Communities
Many Indigenous communities are considering restricting access to their communities by non-members to help stop the spread of COVID-19. Indigenous leadership considering such action should seek legal advice and carefully consider the legal basis for such restrictions (whether the s. 81 bylaw powers under the Indian Act, the nation’s Land Code, any modern treaty or self-government agreement powers, or the inherent right of self-government) and the form they should take (Band Council Resolution, law, bylaw or policy). Nations should consider grounding such action in multiple sources of authority (e.g. both the Indian Act and the inherent right of self-government) to protect the restrictions from challenge. Issues could arise where the restrictions conflict with the rights of individuals such as property rights that non-members might have as the result of legitimate leases and permits. Other important considerations include how the Nation intends to publicize and enforce such restrictions.
Rights of Individuals
Annual Treaty Payments
During the COVID-19 pandemic, treaty annuity payment events have been postponed by ISC. To receive a treaty payment, individuals can apply by mail, and will receive their payment in the form of a cheque. The application form and more information are available here. This may pose challenges for individuals who do not have access to a bank in their community or to mobile banking using a cell phone in order to deposit their cheque. Generally, cheques in Canada are “stale-dated” after 6 months, which means banks can refused to deposit them; however this does not apply to cheques from the Government of Canada. This means that if you need to you can hold on to your treaty annuity cheque until it is safe to go to a bank and cash it or deposit it.
Indian Registrar’s Office
Indigenous Services Canada offices for Indian registration (status) and Secure Certificates of Indian Status (status cards) are closed due to the COVID-19 pandemic. However, the Indian Registrar’s office continues to accept applications. Applicants should contact their Indian Registrar Administrators at their Band Office for assistance or apply by mail to the addresses below. Application for Indian status under the recent changes to the Indian Act (Bill S-3) should be sent to:
Application Processing Unit
Box 6700 Winnipeg, Manitoba
Any other applications and applications for the Secure Certificate of Indian Status (SCIS) card only (for people who already have their status) should be sent to:
National Registration Processing Unit
10 Wellington Street Gatineau, Quebec
The public enquiries telephone line is not being answered. Applicants should instead contact the Registrar’s office by email with any questions: InfoPubs@aadnc-aandc.gc.ca.
Civil Liberties and Human Rights
Provincial and municipal governments are taking more steps to enforce physical distancing and other pandemic health and safety measures, For example the province of Ontario has announced that anyone charged under their Emergency Management and Civil Protection Act must identify themselves when asked by a provincial officer (including provincial and municipal police, First Nation police and bylaw officers) and can be fined if they fail to do so.
While ensuring people follow health and safety measures is important, many have raised concern that the human rights of Indigenous, racialized and other marginalized communities may be disproportionately impacted by interactions with police, and the imposition of fines and other penalties. Pivot Legal Society in BC has created a Know Your Rights Card for interactions with police, and a Handbook for people who rely on public space which includes information about your rights when interacting with police.
Consultation and Accommodation
Ontario Public Consultation Suspended
Citing COVID-19, the Ontario government has passed a regulation that suspends a requirement under the Environmental Bill of Rights, requiring the government to consult with the public about decisions that may impact the environment.
The regulation also exempts the Ontario government from posting notices on Ontario’s Environmental Registry. The Environmental Registry is an online database that allows the public to review, and comment on notices that are issued under certain pieces of environmental legislation.
The regulation suspending public consultation on environmental decisions will remain in force until 30 days after Ontario’s state of emergency has been lifted.
This issue has been reported on here.
Alberta Environmental Reporting Suspended
The Alberta government has suspended environmental reporting requirements under the Environmental Protection and Enhancement Act (EPEA), the Water Act and the Public Lands Act. This means that companies will no longer be required to produce environmental impact assessment reports, or produce monitoring data normally required as a condition of licenses or permits. However, permit holders are still required to record and retain reporting information during this time.
The suspension, issued by way of ministerial order, will remain in place until August, unless terminated earlier.
This issue has been reported on here.
Trans Mountain Continues Construction
Construction of the Trans Mountain Expansion Project will continue to move forward despite the outbreak of COVID-19, although certain activities have been suspended and the construction schedule has been modified slightly. Trans Mountain has advised that it is implementing additional measures due to the COVID-19 pandemic.
However, the Canadian Energy Regulator has decided to suspend its on-site inspections. As a result, Indigenous monitoring activities have also been suspended.
CER has suspended detailed route hearings for Trans Mountain Expansion Project
On March 31, 2020, the Commission of the Canadian Energy Regulator issued a procedural direction postponing the detailed route hearings for segments 5, 6, and 7 of the Trans Mountain Expansion Project. The Commission is considering process options for the hearings in light of the current COVID-19 pandemic (read the procedural direction here). The Commission stated that it will issue another Procedural Direction in the near future setting out new processes for the hearings.
Impacts on Court Proceedings
An Update on Court Closures in British Columbia, Alberta and Ontario
Most litigation has ground to a halt throughout Canada due to court closures and suspensions in an effort to protect the health and safety of court users and to help contain the spread of COVID-19. Information about the current status of courts across Canada is available on their websites. Here we discuss the latest updates from the courts in British Columbia, Alberta, and Ontario.
On March 19, 2020, the Honourable Chief Justice Hinkson suspended regular operations of the Supreme Court of British Columbia at all of its locations until further notice. All civil matters scheduled for hearing between March 19, 2020 and May 1, 2020 have been adjourned, including all trials, conferences, and chambers applications or other hearings currently scheduled for hearing. The Court will hear only essential and urgent matters. Essential and urgent matters include, among other things:
- matters relating to the safety of a child or parent due to a risk of violence;
- matters related to public health and safety and COVID-19; and
- urgent injunction applications.
More information from the British Columbia courts is available here.
To help contain the spread of COVID-19, the Alberta Court of Queen’s Bench is limiting hearings to emergency or urgent matters only. Urgent or emergency matters include those matters listed above for the British Columbia Supreme Court. All civil and family matters scheduled for hearing between March 16, 2020 and May 1, 2020 are adjourned.
More information from the Alberta courts is available here.
All of the Ontario courts have modified their procedures and practices as a result of the COVID-19 pandemic. Initially, the Court suspended its regular operations and would hear urgent matters only. However, on April 2, 2020, in recognition of the access to justice problems created by the suspension, the court expanded its operations beyond urgent matters to include certain, non-emergency civil matters. All matters will be heard remotely by way of telephone or video conference.
More information from the Ontario courts is available here