New Zealand Law Society - Supreme Court roundup 23-29 Apr

Supreme Court roundup 23-29 Apr

Decisions, proceedings and news from the highest courts in some common law jurisdictions in the past week.

New Zealand Supreme Court

Prisoner interviews, justification for withholding approval

Smith v Chief Executive, Department of Corrections [2021] NZSC 34 (21 April 2021)

Unsuccessful leave application – A journalist proposed to interview self-represented S – Regs 108 and 109 Corrections Regs 2005 prohibited “interviewing” prisoners without prisoner and Chief Executive’s written approval – How regs applied had previously been raised in cases involving Ahmed Zaoui, Scott Watson and Arthur Taylor – Approval for interview first sought in 2017 – Approval withheld in May 2018 – Judicial review of decision settled – Reconsideration resulted in February 2019 further decision to withhold approval - Reasons came down to likely distress for S’s victims and prison management concerns (particularly in terms of preserving S’s personal safety if  interview published – HC Judge set aside withholding of approval on basis which made it clear that she expected that, on reconsideration (or more likely perhaps, a further application), approval would be granted – CA allowed appeal and upheld withholding of approval – S applied for leave to appeal to SC – SC said proposed appeal raised no  issue of general or public importance which warranted leave to appeal - No appearance of miscarriage of justice – Application declined.

Supreme Court of Canada

Aboriginal Peoples of Canada, Non-citizens, right to hunt

R v Desautel [2021] SCC 17 (23 April 2021)

Unsuccessful appeal from British Columbia CA – D, an American citizen, shot and killed an elk without a hunting license in the Arrow Lakes region in British Columbia in October 2010 – D was a member of the Lakes Tribe of the Colville Confederated Tribes and lived on reserve in Washington State - He was charged with hunting without a license and hunting big game while not being a resident of British Columbia - D admitted that he shot the elk, but argued that he was exercising his Aboriginal right to hunt in the traditional territory of his Sinixt ancestors under section 35 of the Constitution Act, 1982 (Constitution) - He claimed that the Lakes Tribe was a successor group to the Sinixt people whose traditional territory included an area in what was now British Columbia - The place where he shot the elk was within this territory – Trail judge said D a member of the Lakes Tribe, and that Sinixt rights continued with the Lakes Tribe – Said D exercising Aboriginal right to hunt for food, social and ceremonial purposes guaranteed under the Constitution – Crown’s two subsequent appeals dismissed – Appealed to SC – SC majority said “Aboriginal peoples of Canada” meant modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, even if such societies now located outside Canada - Excluding Aboriginal peoples who moved or were forced to move, or whose territory was divided by a border, would add to the injustice of colonialism - Majority concluded that groups whose members were neither citizens nor residents of Canada could be considered part of the “Aboriginal peoples of Canada” and claim an Aboriginal right under section 35 – When it came to Aboriginal claims, trial judge typically best suited to assess evidence  presented - Majority accepted trial judge’s finding that that D’s group, the Lakes Tribe, was successor group of the Sinixt people - At time of contact between the Sinixt and Europeans, their territory extended into what was now British Columbia (to the north), and into what was now Washington State (to the south) - International border created in 1846, and by 1872, a number of Sinixt members were living for the most part in Washington State, but continued to travel to British Columbia for hunting purposes - Majority agreed that moving to live in the American part of their ancestral territory did not prevent Lakes Tribe from being a successor group to the Sinixt – Majority said Lakes Tribe could be considered part of the “Aboriginal peoples of Canada” under section 35 of the Canadian Constitution – Appeal dismissed.

United Kingdom Supreme Court

Rittson-Thomas and ors v Oxford County Council [2021] UKSC 13 (23 April 2021)

Successful appeal from CA - School Sites Act 1841 (the 1841 Act) provided landowners with an easy way to donate up to one acre of land for educational purposes, in particular, as a school site for a school – Issue here was how, if the school later moved to a new site, the original site could be sold to help pay for the costs of the new school - Number of schools falling within the 1841 Act and still on their original sites, and so potentially affected by the appeal, probably exceeded 2,000 - In 1914 and 1928, F conveyed land in Nettlebed to Oxfordshire County Council as  site for an elementary school (the Fleming site) - School expanded - In the 1990s Council decided it should relocate to a new building with improved facilities - Council’s plan was to sell the Fleming site, after the move, to help pay for the costs of the new school - In February 2006 the pupils moved to the new premises - In September 2007, almost all of the Fleming site was sold to a property developer for £1,243,819.50 – Four of F’s heirs brought a challenge against the Council - Claimed that, under the 1841 Act, any land donated for the establishment of a school reverted to the landowner (or his or her heirs) the moment land ceased to be used for school purposes -That moment arrived when Council moved the pupils to new premises in February 2006 – Fleming site had been left empty and was no longer being used for school purposes - 1841 Act required site to be sold before the school was moved, not after - Thus, Council held Fleming site on trust for the heirs when it was sold, and had to transfer the £1,243,819.50 over to them - Council disagreed, saying it had always been Council’s intention to apply the proceeds of sale to the new premises and that, practically, the pupils needed to move before the old site was sold – HC rejected heirs’ claim – CA reversed -  Council appealed to SC – SC unanimously allowed appeal - Fleming site had not ceased to be used for the school purposes, even after the school had moved, as Council always intended to use the sale proceeds to pay off cost of the new school premises – Appeal allowed.

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