Montréal, Quebec, December 22, 2005
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
BETWEEN:
and
REASONS FOR ORDER AND ORDER
[1] As filed, the Respondent's motion is to strike out portions of the Applicant's application for judicial review, namely the second and third grounds listed in the application. The third ground listed in the Applicant's application is not, for the purpose of this motion, in contention any more since at the hearing counsel for the Applicant agreed to replace it with a more appropriate wording. We shall return to that point at paragraph 28, infra.
[2] The Respondent alleges in its motion that the second ground for review has no possibility of success, that it is barred by issue estoppel and re-litigating it would amount to an abuse of process.
FACTS
[3] The relevant facts at the foundation of this motion are as follows.
[4] The Applicant is a society registered pursuant to the Societies Act, R.S.N.S. 1989, c. 435. It represents Métis and off-reserve/non-status Aboriginal people, and seeks to enforce the Aboriginal and Treaty rights enjoyed by these individuals.
[5] In 2001, the Applicant, together with several individual plaintiffs, commenced an action against the Respondent, the Minister of Fisheries and Oceans, the Minister of Indian and Northern Affairs, and the Interlocutor for Métis and Non-Status Indians (the 2001 Action). It was alleged that the Crown had failed to meet its duty of consultation with respect to aboriginal rights and fishing agreements.
[6] The Applicant and individual plaintiffs sought a declaration that the defendants had breached their duty of consultation, a declaration setting out the process to be followed in the future in order to comply with that duty, and an injunction preventing the defendants from making decisions if they had not complied with the process. In addition, the Applicant and individual plaintiffs sought certiorari to quash decisions made without consultation.
[7] The Respondent brought a motion seeking an order striking the statement of claim or, in the alternative, that portions of the claim be struck and the Applicant removed as a party to the litigation. The decision on this motion was rendered on January 4, 2002 at Native Council of Nova Scotiav. Canada (Attorney General), 2002 FCT 6 (hereinafter Native Council). There, Blanchard, J. declined to strike the claim in its entirety, as it was not without the possibility of success. However, the body of the statement of claim was struck as it was found to be deficient, and the plaintiffs were given the opportunity to amend it.
[8] In addition, the Applicant was removed as a party to the litigation as it, as a registered society, did not have the same interest as the individual plaintiffs. It was not a necessary party to the action as the result would not be binding upon it and the issue could be resolved without its participation. This decision was not appealed.
[9] On May 18, 2005, the Applicant filed the application that is the subject of this motion. It seeks judicial review of an April 22, 2005 decision made by Fisheries and Oceans Canada to impose conditions on the Applicant's lobster fishery licence for food, social and ceremonial purposes. It bases its application on three grounds: 1) the decision is contrary to the principles of fundamental justice and procedural fairness; 2) the decision is contrary to the duty to consult and accommodate Aboriginal people; and 3) the decision is contrary to the Applicant's right to hunt and fish for food, social and ceremonial purposes (this latter wording has been replaced, see paragraph 28, infra).
[10] The Respondents filed the motion at bar on August 12, 2005, seeking that the second ground of the Applicant's application for judicial review be struck. It submitted that this ground had no possibility of success and was barred by issue estoppel, as this issue had been litigated previously in Native Council. According to the Respondent, the Applicant does not and cannot have aboriginal rights as it is a corporate body. Without these rights, it is owed no duty of consultation.
[11] The Applicant submits that it should have standing and that the decision in Native Council does not govern the outcome of this litigation as Native Council dealt, inter alia, with the ability of a body such as the Applicant to bring a representative action. Therefore, the issue estoppel does not apply.
[12] The Applicant also takes the position that the Supreme Court of Canada decisions in Taku River Tlingit First Nation v. British Columbia, [2004] 3 S.C.R. 550 and Haida Nation v. British Columbia, [2004] 3 S.C.R. 511 are more recent than the decision in Native Council, and that these decisions could affect the law with respect to the duty to consult.
[13] The Applicant further submits that as individual Aboriginal people cannot easily in practice be consulted, its members have chosen the society as the vehicle through which they will be consulted by the government. It says that it is a proper party by reason of necessity, and that it has standing to insist that the Respondent fulfill its constitutional obligations to consult.
ANALYSIS
[14] For the reasons that follow, I am of the view that the Respondent's motion regarding the second ground in the Applicant's application must fail.
[15] The legal test for striking out a pleading in an action is whether it is plain and obvious that the claim discloses no reasonable cause of action: Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada(Attorney General), [1980] 2 S.C.R. 735, at 740.
[16] In a judicial review application, as is this case here, the test is as stringent and has been laid out in Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48 at pages 53 to 55.
[17] There, it was determined that a motion to strike out in a judicial review proceeding would only be allowed in exceptional cases:
[T]he focus in judicial review is on moving the application along to the hearing stage as quickly as possible. This ensures that the objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case.
. . .
This is not to say that there is no jurisdiction in this court either inherent or through Rule 5 [now Rule 4] by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. (See e.g. Cyanamid Agricultural de Puerto Rico, Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al v. Canada(Minister of National Defence) et al, [1994] 1 F.C. 102 (T.D.), at 120-121; 64 F.T.R. 127 (F.C.T.D.). Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.
[Underlining added.]
[18] The second ground of the Applicant's application concerns the "duty to consult and accommodate Aboriginal people" and the allegation that the impugned decision is contrary to this duty. I note that the Applicant is not arguing that the decision is contrary to the duty to consult with itself as a society. Rather, it is asserting the right of consultation of its members.
[19] The Applicant takes the position that individuals would not be able to obtain consultation or challenge the impugned decision alone as they are not aware of the history of negotiations between the Applicant and Fisheries and Oceans Canada. This renders it necessary for the Applicant to act as their representative in this litigation.
[20] I agree with the Applicant's position that the decision of this Court in Native Council does not govern the outcome of this motion since that decision dealt with the ability of the Applicant to bring a representative action.
[21] There is case law which suggests that aboriginal rights cannot be separated from the duty to consult, including First Nations of Saskatchewan v. Canada(Attorney General), 2002 FCT 1001, to which the Respondent refers. However, there is no case law which makes this point clearly, possibly because the law with respect to the duty to consult remains in a state of development. As a result of the lack of certainty on this point, it is not plain and obvious that the Respondent is correct.
[22] The duty to consult is still being defined and interpreted by various levels of court in Canada. The Supreme Court of Canada's judgment in Haida Nation discusses the need to consult "Aboriginal peoples" (see, for example, para. 45) and "Aboriginal groups" (para. 48). The representative party for the Haida First Nation was the Council of the Haida Nation; the Court did not comment on the appropriateness of this group as a representative party. The TakuRiver judgment discusses consulting and accommodating "Aboriginal peoples" (para. 21) and the Taku River Tlingit First Nation as a whole (see, for example, para. 46). Neither of these cases conclude that there is an obligation for the Crown to consult with individual members of aboriginal communities.
[23] The language used by the Supreme Court of Canada could be construed as expanding the duty to consult to aboriginal organizations. Under such a construction, it may be possible to allow representative proceedings by aboriginal groups which do not attract substantive aboriginal rights themselves, particularly in cases where their individual members would otherwise have difficulty obtaining consultation.
[24] Here, it was brought to the attention of the Court that the Minister of Fisheries and Oceans did consult the Applicant with respect to a previous licence, although the Defendant sustained vigorously that said consultation addressed solely fisheries management issues and were not intended to recognize any aboriginal rights.
[25] Therefore, the issue as to whether aboriginal procedural rights can exist independently from the aboriginal substantive rights remains open and, from my point of view, requires further argument and examination prior to determination.
[26] Recently, the Supreme Court of Canada commented on the duty to consult in Mikisew Cree First Nation v. Canada(Minister of Canadian Heritage), 2005 SCC 69. This case dealt with the duty to consult treaty signatories if Crown development projects could affect treaty rights. The applicability of the duty to consult aboriginal organizations in such a fashion was not really addressed or clarified. It would appear therefore that this issue remains uncertain and open for debate.
[27] Therefore, while it is possible that the second ground of the Applicant's application will be unsuccessful at the merits on judicial review, it is not plain and obvious that it is devoid of merit. Thus, the Applicant's second ground will not be struck from the pleadings.
[28] As for the third ground found in the Applicant's application, as indicated earlier, counsel for the Applicant has agreed to replace it with the following wording:
FOC's decision violates the Aboriginal Fisheries Arrangement between DFO and NCNS dated the 26th day of January, 2005.
[29] Counsel for the Respondent has agreed as to form to this wording. Of course, the Respondent remains and intends to oppose said ground at the merits. Therefore, said wording is deemed to replace the initial wording of the third ground in the Applicant's application without the necessity for the Applicant to serve and file an Amended Notice of Application.
[30] Consequently, the Respondent's motion to strike is denied, with costs in the cause.
[31] Pursuant to Rule 8 of the Federal Courts Rules, the time for serving and filing the Respondent's affidavits is extended to January 27, 2006.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-872-05
STYLE OF CAUSE:
NATIVE COUNCIL OF NOVA SCOTIA
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: December 8, 2005
REASONS FOR ORDER: Richard Morneau, Esq., Prothonotary
DATE OF REASONS FOR ORDER: December 22, 2005
APPEARANCES:
| Mr. D. Bruce Clarke Mr. Brian K. Awad |
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For the Applicant |
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| Mr. Jonathan D.N. Tarlton |
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For the Respondent |
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SOLICITORS OF RECORD:
| Bruchell Hayman Parish Halifax, Nova Scotia |
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For the Applicant |
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| John H. Sims, Q.C. Deputy Attorney General of Canada |
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For the Respondent |
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