Bellegarde v. Canada (Attorney General), 2002 FCT 1131

Date: 20021031

Docket: T-994-01

Neutral citation: 2002 FCT 1131

BETWEEN:

                                   CHIEF PERRY BELLEGARDE, REPRESENTING HIMSELF

                             AND ALL MEMBERS OF THE SASKATCHEWAN FIRST NATIONS

                                             AND INDIAN BANDS AND THEIR MEMBERS,

                      FIRST VICE-CHIEF GREGORY AHENAKEW, REPRESENTING HIMSELF

                             AND ALL MEMBERS OF THE SASKATCHEWAN FIRST NATIONS

                                             AND INDIAN BANDS AND THEIR MEMBERS,

                          CHIEF LOUIS JOSIE, REPRESENTING HIMSELF AND ALL OTHER

                                 MEMBERS OF THE HATCHET LAKE DENESULINE NATION,

                     CHIEF BARRY AHENAKEW, REPRESENTING HIMSELF AND ALL OTHER

                                  MEMBERS OF THE AHTAHKAKOOP FIRST NATION, AND

                      CHIEF CLIFFORD STARR, REPRESENTING HIMSELF AND ALL OTHER

                                      MEMBERS OF THE STAR BLANKET CREE NATION &

                         CHIEF MARCEL HEAD REPRESENTING HIMSELF AND ALL OTHER

                                       MEMBERS OF THE SHOAL LAKE CREE NATION &

                         CHIEF EDDIE MARTIN REPRESENTING HIMSELF AND ALL OTHER

                                   MEMBERS OF THE FOND DU LAC DENESULINE NATION

                                                                                                                                                       Applicants

                                                                              - and -

                                                             THE ATTORNEY GENERAL

                                                                         OF CANADA

                                                                                                                                                     Respondent

                                                            REASONS FOR ORDER

BEAUDRY J.

1.                    The Applicants seek an Interlocutory Constitutional Injunction pursuant to Federal Court Rule 373(1) enjoining and prohibiting the Attorney General for Canada, and any agents or servants of Her Majesty the Queen in right of Canada, from applying or enforcing the Criminal Code, R.S.C. 1985, Chap. C-46, and Firearms Act, S.C. 1995, c. 39 to or against the Applicants and their members in Saskatchewan in respect of their purchase, possession or use of an "ordinary firearm" or ammunition as defined by the Supreme Court in Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783 for the exercise of their pre-existing and longstanding aboriginal hunting and harvesting rights, and the hunting and harvesting rights promised to them by the Crown in the historic treaties, all of which are rights protected by Section 35 of the Constitution Act 1982, pending the outcome of the main action.

ISSUE

2.                    Are the Applicants entitled to the interim relief that they seek against the Crown relative to this action?

3.                    My answer to this question is "no" for the following reasons.

THE UNDERLYING ACTION

4.                    The Applicants claim that the application of the Firearms Act, S.C. 1995, c. C-39 (the "Firearms Act") to them and to others in their nations violates the promises that bind the Crown in right of Canada, having inherited these obligations from the British Crown, with whom the nations of the Applicants entered into the treaties filed with this motion. The Applicants also claim that at least some of the regulations enacted with respect to the Firearms Act (the "Regulations") and the means by which they were enacted are improper and violate their constitutional and treaty rights.

BACKGROUND FACTS

5.                    The facts on which the claim is based are largely historical in nature. The crux of the action is that the Crown has duties and obligations to the First Nations of Saskatchewan which have their origins in the treaties between the Crown and First Nations.

6.                    The land in what is now known as Saskatchewan was ceded to the British Crown by the First Nations which occupy them through a series of treaties.

7.                    A copy of each of the applicable treaties by which land in what is now Saskatchewan was ceded appears under Tab 3, Exhibit "A", at Volume One of the Applicants' Record (March 22, 2002).

8.                    Treaty No. 1, concluded on August 3, 1871, was an agreement to cede land in Manitoba in exchange for land to be reserved for First Nations and annual payments in cash or supplies. The treaty was accompanied by a memorandum of promises that were made which were not reflected in the text of the treaty, as well as agreements by Nations that were not parties to the original treaty to add their accession to the treaty subsequent to its signing.

9.                    Treaty No. 2 was concluded on August 24, 1871, and made similar provisions primarily in respect of lands in Manitoba but also included the southeast corner of what is now Saskatchewan. At page 4 of Treaty No. 1 and page 12 of Treaty No. 2, the annual payments per family are described in part as follows:

[...] Her Majesty's Commissioner shall [...] pay to each Indian family [...] the sum of fifteen dollars, Canadian currency, or in like proportion for a larger or smaller family, such payment to be made in such articles as the Indians shall require of blankets, clothing, prints (assorted colours), twine or traps [...] or otherwise [...] in cash.

10.              Treaties No. 1 and No. 2 were concluded between the Cree and Chippewa Tribe and the Crown.

11.              Treaty No. 4 was concluded between the Cree and Saulteaux Tribes and the Crown at Qu'Appelle and Fort Ellice, in Saskatchewan, on September 15, 1874. Treaty No. 4 covers much of southern Saskatchewan. In that treaty, this passage appears at page 7:

And further, Her Majesty agrees that Her said Indians shall have the right to pursue their avocations of hunting, trapping and fishing throughout the tract surrendered, subject to such regulations as may from time to time be made b the Government of the country, acting under the authority of Her Majesty [...].

12.              The Saulteaux and Swampy Cree Tribes entered into Treaty No. 5 with the Crown on September 24, 1875. This treaty largely dealt with the cession of land in Manitoba but also covers a portion of eastern Saskatchewan. The passage quoted above from Treaty No. 4 was restated in Treaty No. 5, indicating the agreement of the Crown that aboriginal people be allowed to continue their primary activities, including hunting. Treaty No. 5 also provided for the purchase and distribution by the Crown of ammunition, twine and nets to enable members of the bands to continue their pursuits.

13.              Treaty No. 6, concluded in 1876 between the Crown and the Plain and Wood Cree Tribes and the Crown, with subsequent adhesions by other Tribes, covers a large portion of southern and central Saskatchewan. Treaty No. 8 and Treaty No. 10 are the other treaties which appear in the exhibit to the affidavit of Vice-Chief Ahenakew.

14.              In 1995, Parliament enacted the Firearms Act, which brought about amendments to the Criminal Code. The legislation was the subject of a reference which was ultimately decided by the Supreme Court of Canada: Reference re Firearms Act, [2000] 1 S.C.R. 783 ["Reference"]. The Court decided that the legislation was validly enacted as federal legislation, intra vires Parliament.

15.              The Firearms Act was introduced in the House of Commons as Bill C-68 of the 35^th Parliament, and received Royal Assent on December 5, 1995. Among its provisions, the Firearms Act provides for a "chief firearms officer", defined as follows:

16.              Under the Firearms Act and its regulations, the Canadian Firearms Centre was established to administer, among other things, the registration of firearms.

17.              In February 1995, the Federation of Saskatchewan Indian Nations (the "FSIN") Legislative Assembly issued a Resolution expressing its opposition to the Firearms Act. The Resolution states, among other things, that the Firearms Act as proposed impinged upon the treaty and aboriginal rights of First Nations people, and that the FSIN would propose its own gun control legislation. Proposals to lobby the federal government on this issue followed the Resolution.

18.              On October 18, 2000, FSIN issued a Declaration in respect of its treaty rights to "sustenance and a livelihood" and "the freedom to carry firearms without restriction". This Declaration makes reference to passages from the treaties referred to above, citing the passages as evidence of the promise of the Crown not to interfere with the right to hunt for sustenance.

19.              In the view of FSIN, the treaties are agreements between sovereign nations; namely, the British Crown (and now the Federal Crown of Canada) and the various First Nations with whom the treaties had been concluded. The Declaration also expresses a belief in the constitutional supremacy of the rights being asserted, the treaty guarantees of the avocations of hunting, trapping and fishing, and the jurisdiction of First Nations to regulate their people and territories for themselves.

20.              A draft of legislation prepared by FSIN for its own regulation of the people of the First Nations of Saskatchewan is included in the Applicants' material. The draft legislation includes provisions which mirror those of the Firearms Act. These include registration requirements, the requirement to complete a safety course and the possibility of prohibiting individuals from possessing firearms.

21.              In 2000, FSIN came out with a "declaration". The declaration is an assertion by the FSIN Assembly of its treaty and constitutional rights. The impugned legislation was the subject of a great deal of discussion at the Assembly. The FSIN, through its counsel, intervened in the Reference, supra.

PREVIOUS PROCEDURAL STEPS

22.              The Applicants filed their Statement of Claim on June 4, 2001. They also outline what, in their view, was promised in each of the treaties signed by their tribes. They highlighted that the treaties contain written promises that they would be allowed to continue hunting. The Applicants also claim that oral promises were made, as reflected in the reports by the Commissioners in charge of negotiating the treaties.

23.              The Applicants also allege that the treaties into which they entered ensure their right of the Nations to which they belong to govern their own affairs as sovereign nations. A premise of this and many of the other claims being made is that the tribes who entered into these treaties did so with the understanding that the treaties were being concluded between sovereign nations; namely, the First Nations concerned and the British Crown.

24.              The Applicants also state that the treaties provide them with guarantees of non-interference by the Crown and self-regulation - regulation by First Nations of their own affairs. They contend that the Firearms Act is an infringement of these guarantees which is not justified.

25.              The Statement of Defence was filed on July 19, 2001, with the Applicants' consent. The Respondent expressed its denial of the Applicants' claim that the effects of the treaties and other instruments, such as the Royal Proclamation, 1763, are exactly as described by the Applicants. The Respondent also denies that the aboriginal right to self-governance is of the breadth and nature that the Applicants claim it is, and deny in any event that the Firearms Act is an infringement of those rights and guarantees.

26.              The Motion Record for this interlocutory motion was filed by the Applicants on March 25, 2002.

27.              In a letter, on April 19, 2002, counsel for the Applicants noted that the motion should be heard prior to the start of the following hunting season. The Applicants stated that the longer the aboriginals of Saskatchewan had to go without hunting, the more harm they would suffer. Counsel for the Applicants enclosed with the letter a statement by a University of Lethbridge professor, Dr. Peter Douglas Elias, noting the various deleterious effects of the loss of hunting on First Nations communities.

28.              Counsel for the Respondent replied with a letter of his own on April 29, 2002. The Respondent questioned the urgency of the interlocutory motion. On May 2, 2002, Lutfy A.C.J. issued an order that the action be continued as a specially managed proceeding and Hugessen J. was designated as the Case Management Judge. In a May 23 teleconference the hearing of this interlocutory injunction was set down for four days beginning October 29, 2002, in Vancouver.

SUBMISSIONS BY PARTIES

Applicants

29.              The submissions of the Applicants can be summarized as follows:

1.          Nature of the motion

2.    Treaty right to hunt

3.    Demonstration of a constitutional breach with reference to R. v. Sparrow, [1990] 1 S.C.R. 1075 ["Sparrow"]

4.    Injunctive relief based on the test enunciated in RJR-MacDonald Inc. v. Canada (Attorney-General), [1994] 1 S.C.R. 311 ["RJR-MacDonald"]

5.    Injunctive relief against the Crown

1.    Nature of the Motion

30.              The Applicants seek an interlocutory injunction restraining the Respondent from applying the Criminal Code or the Firearms Act against the Applicants and any other individual members of the First Nation of Saskatchewan with respect to their use of "ordinary firearms" as defined in the Reference. The injunction would therefore not prevent the Respondent from regulating prohibited or restricted weapons, and would not prevent the Respondent from taking action with respect to persons of the First Nations who are subject to prohibition orders or limitations under sections 109 and 113 of the Criminal Code respectively.

31.              The Applicants note that Rule 373(1) of the Federal Court Rules, 1998, SOR/98-106 [Rules], authorizes a judge to grant an interlocutory injunction.

2.    Treaty Right to Hunt

32.              First Nations people have a treaty right to hunt using ordinary firearms and related ammunition without restriction. They should therefore be allowed to hunt with these firearms without having to register them, notwithstanding the Firearms Act.

33.              Other traditional practices of the First Nations are closely linked to the traditional practices for the harvesting of wildlife, including hunting. The treaty right to hunt goes beyond a mere right to pursue sustenance. Treaty rights out to be interpreted more broadly than common law property rights. The Applicants invoke Sparrow in support of this proposition.

34.              The oral and written guarantees of the Crown, secured during negotiations between First Nations and the Crown, stressed that the Crown would not interfere with hunting, and that members of Indian Nations would be able to hunt as if they had never entered into the treaties. Three categories of guarantees are highlighted: non-interference with hunting, continuation of previous hunting freedoms and continued Indian self-regulation of hunting.

35.              The Applicants refer to R. v. Badger, [1996] 1 S.C.R. 771 ["Badger"] as authority for the judicially sanctioned rule that there can be no limitation on the method, timing and extent of hunting by aboriginals under a Treaty. The hunting right must be without restriction in order to be effective. The Applicants also referred to the decision of the Supreme of Canada in R. v. Sundown, [1999] 1 S.C.R. 393 ["Sundown"], where the Court discussed the definition of what is reasonably incidental to hunting.

36.              The Applicants submit that the Treaties recognized and affirmed certain rights of First Nations self-government, and quote in their submissions passages from Badger and from treaties in support of their submission. They argue that the Firearms Act infringes the treaty right to hunt, in spite of the non-derogation clause in subsection 2(3) of the Firearms Act:

37.              The Applicants claim that the requirement that every treaty Indian in Saskatchewan obtain a licence from the federal government violates their Treaty rights. The Respondent, in its view, is now foreclosed from justifying the infringement upon these rights, having acknowledged a possible impact on these rights by including subsection 2(3) in the Firearms Act. Parliament did not intend to interfere with treaty rights, so it cannot now be argued that public safety or public policy justifies the infringement. The Firearms Act cannot be justified, since full and meaningful consultation did not take place. Badger and Sparrow are also cited to support these arguments.

3.    Demonstration of a Constitutional Breach with Reference to Sparrow

38.              Here, the Applicants lay out and discuss the elements of the Sparrow test, as well as sections 35 and 35.1 of the Constitution Act, 1982. Subsection 35(1) of the Constitution Act, 1982, states:

39.              The Applicants submit that s. 35.1, which provides to Indians a special status in the constitutional amendment process, emphasizes the importance of the protection of treaties in Canadian law. The section reads as follows:

40.              There are four elements in the Sparrow test for justifying the infringement of an aboriginal right. The first element is whether the limitation was imposed according to a valid legislative objective. The second element concerns whether the legislation in question achieves its objective by upholding the honour of the Crown in relation to its dealings with aboriginal people. Next, a court would examine whether there has been as little infringement as possible in order to achieve the desired result. Finally, for an infringement to be justified, the aboriginal or treaty group in question must have been adequately consulted.

41.              The Applicants are prepared to accept that the legislative objective - public safety - is a valid one. They submit, however, that the other elements of the Sparrow test are not met. In their view, the Crown failed to respect the fiduciary duty which is part of the duty to uphold its honour in dealing with aboriginals. Sufficient consultation was not undertaken prior to passage of the law. Standard public consultations are insufficient, according to the relevant jurisprudence. Consultation must specifically target First Nations and focus on their concerns in order to be sufficient for the purposes of this test.

42.              The Applicants quote from Peter Hogg, Constitutional Law of Canada, (1997), a statement that the constitutional entrenchment of aboriginal and treaty rights in s. 35(1) means that alteration or derogation of those rights cannot occur without constitutional amendment or the consent of those who hold the rights. That consent is not present here. On several occasions, the Applicants have manifested their opposition to this legislation. The Applicants conclude at paragraph 52 of their submissions that it "cannot fairly be said that the First Nations have 'slept on their rights'" (March 22, 2002).

43.              With respect to minimal infringement, the burden lies on the Crown to demonstrate that there has been minimal infringement of treaty rights. This also was stated in Badger. Paragraph 117(u) of the Firearms Act gives the Governor in Council the power to make regulations, as stated below:

44.              This provision is evidence that the Firearms Act does not minimally infringe upon treaty rights, as it gives the Governor in Council limitless discretion. The Governor in Council could define by regulation the scope of the statute and its application to "aboriginal peoples". This would go against the rule in R. v. Côté, [1996] 3 S.C.R. 139, where it was stated that the Crown has a fiduciary duty to define any delegated powers it may confer on anyone else.

45.              The right to hunt is reduced to a privilege that must be earned by going through administrative processes which may be arbitrary. In the words of the applicants, this amounts to constitutional amendment through inferior means. Their conclusion is that the legislative aim could have been achieved through less infringement. The infringement is therefore not minimal.

46.              With respect to the duty of consultation, the arguments on this point were included in those with respect to the honour of the Crown.

4.    Injunctive Relief Based on the Test Enunciated in RJR-Macdonald

47.              The Applicants must demonstrate the following: 1) that there is a serious question to be tried; 2) that the Applicants will suffer irreparable harm if the relief is not granted; and 3) that the balance of convenience favours the granting of the injunction.

48.              The Applicants submit that the diminution of the treaty right to hunt by operation of the Firearms Act goes to the heart of centuries-old customs and practices. The terms of the treaties do not provide for licensing or registration requirements. The Respondent could have consulted with First Nations and allowed legislation developed by First Nations to be implemented and administered by them for themselves. These are serious questions to be tried.

49.              The licensing, certificate and authorization regime presently provided in the Firearms Act will deny many holders of treaty rights their preferred means of exercising those rights. The letter of Dr. Elias, referred to above, lists some of the consequences that will arise among people of the First Nations as they pass long periods of time without being able to hunt. These impacts are social, cultural and economic in nature. In addition, diets will be lacking in the nutrients from foods to which aboriginals are accustomed, and social pathologies may result from a decline in hunting activity, as that connection to the land is diminished. The remarks of Dr. Elias are buttressed by the affidavits and cross-examinations of many of the First Nations leaders who deposed affidavits.

50.              The balance of convenience favours the granting of the injunctive relief sought. Damages are not an adequate remedy for the infringement of a constitutional and Treaty right to hunt. Damages that may take years to obtain will not satisfy the health, social and cultural needs of today, nor will they undo the damage that a lack of hunting activity can do over time. It is also in the public interest to ensure that constitutional rights are respected.

51.              Given these considerations, the balance of convenience favours the granting of injunctive relief to protect the status quo. It will protect the rights of the Applicants without limiting the ability of the Respondent to enforce the Firearms Act with regard to the majority of the Canadian public.

5.    Injunctive Relief Against the Crown

52.              The Applicants note that the ability to obtain injunctive relief against the Crown is very limited. The Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 22 states:

53.              Generally, courts allow declaratory relief against the Crown in the form of a declaration which states the law applicable to the parties but which does not include any coercive orders. However, it is submitted that a court can issue an injunction against the Crown where the injunction is sought to prevent a violation of the Constitution. The Applicants cited in support of these submissions a doctrinal work: Peter W. Hogg and Patrick J. Monahan, Liability of the Crown (3^rd edition) (Toronto: Carswell, 2000). They also cited Lévesque v. Canada (Attorney General), [1986] 2 F.C. 287.

54.              The Applicants state three conclusions on the issue of injunctive relief. One is that Treaty rights are special rights, entrenched in the Constitution Act, 1982. The second is that a breach of these special rights is occurring and continues to occur. The last of the conclusions is that relief in the form of a Constitutional Injunction is available against the Crown, and is appropriate.

55.              The Applicants submit that, in connection with their application for an interlocutory injunction, the Court should exercise its discretion and not require that the Applicants provide an undertaking to cover the damages that may result from the granting of the injunction. The First Nations have historically been economically disadvantaged, and still are. In addition, provisions of the Indian Act restrict their ability to pledge land and other assets as security. In addition, the honour of the Crown is implicated here, and it would be dishonourable to force First Nations to endure an infringement of their rights simply because they could not provide an undertaking.

Respondent

56.              The Respondent, in summary, submits the following elements:

1.          Urgency of the matter

2.          Fiduciary responsibility of the Crown

3.    Possibility of a cascade of claims

4.          The tripartite test in RJR-Macdonald has not been met by the Applicants

1.    The Urgency of the Matter

57.              The Respondent argues that the main action was commenced on June 4, 2001. The Applicants' motion for interlocutory relief was served and filed on March 25, 2002. Presumably, the adverse effects which the Applicants allege they will experience were also experienced by them during the hunting season in 2001-2002, but they did not choose to apply for interlocutory relief until now. This would suggest that the urgency attaching to this matter is not as great as the Applicants suggest.

2.    Fiduciary Responsibility of the Crown

58.              The Respondent notes that there is a special relationship between the Crown and aboriginal people which can at times, in certain circumstances, lead to fiduciary obligations but the circumstances alleged in the statement of claim do not give rise to a legally enforceable obligation which Applicants claim a right to enforce.

59.              The Respondent also disagrees with the effects of the Royal Proclamation on aboriginal rights as alleged by the applicants. He also points out that the treaty guarantees with respect to hunting were expressly subject to such regulations as might from time to time be made by the government of Canada. In addition, he disputes that the oral promises made by the Commissioners who represented the Crown in treaty negotiations constitute explicit and solemn assurances with respect to treaty rights.

60.              The Respondent denies that the treaties in question recognized or continued any power or jurisdiction on the part of Indian bands to regulate the affairs of their members, and he denies all allegations with respect to the continuance, non-interference and self-regulation by aboriginals of their hunting rights.

61.              Included in this denial are all allegations specifically calling into question the legality of the Firearms Act in particular. It is the Respondent's view that the measures in the Firearms Act interfere with the rights of aboriginals to the minimal extent necessary to achieve the purpose of the legislation, and is therefore justifiable.

3.    Possibility of Cascade of Claims

62.              The Respondent argues that if the present motion is granted there is a real probability of a cascade of claims launched by others off-setting sections of the Firearms Act.

4.    The Tripartite Test

63.              The RJR-Macdonald test has not been met, therefore the Applicants are not entitled to the relief that they are seeking.

ANALYSIS

64.              My analysis will focus almost exclusively on the question of whether to grant the interlocutory injunction sought by means of the motion before me.

65.              As it is generally known, the RJR-Macdonald test is an adaptation of the test laid out in the English case American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 ["American Cyanamid"]. The American Cyanamid test was adopted by the Supreme Court in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 ["Metropolitan Stores"]. The Applicants must demonstrate the existence of a serious issue to be tried, a reasonable likelihood that they would suffer irreparable harm if the injunction were not granted, and that the balance of convenience favours the granting of the injunction.

66.              Although this is not a Charter case, the Constitution Act, 1982, of which the Charter is a part, is at play here. The Applicants are asserting rights that, in their view, are supported by the Constitution of Canada, as well as the treaties into which they entered. With this consideration in mind, it is useful to refer to the remarks of Sopinka and Cory JJ. in their judgment of the interlocutory injunction sought in RJR-Macdonald. In that case, the tobacco company sought the suspension of application of laws with respect to the packaging and advertising of tobacco pending the final disposition of their challenge of the law. At pages 333 and 334 of the reasons, Sopinka and Cory JJ. laid out the competing forces requiring careful consideration:

The relief sought is significant and its effects far reaching. A careful balancing process must be undertaken. On one hand, courts must be sensitive to and cautious of making rulings which deprive legislation enacted by elected officials of its effect. On the other hand, the Charter charges the courts with the responsibility of safeguarding fundamental rights. For the courts to insist rigidly that all legislation be enforced to the letter until the moment that it is struck down as unconstitutional might in some instances be to condone the most blatant violation of Charter rights. Such a practice would undermine the spirit and purpose of the Charter and might encourage a government to prolong unduly final resolution of the dispute.

                                                                                                                            [Emphasis added]

Preliminary Arguments

67.              Before proceeding with the tripartite test, two preliminary arguments are worth discussing. One is the possibility that the interlocutory injunction sought would amount to a final determination of the claim before it could be herd on its merits. The second possible argument is that the rule that injunctive relief is not available against the Crown is sufficient to dispose of this motion by dismissing it.

68.              The discussion of the preliminary matters and of the tripartite test requires that I keep in mind that an interlocutory injunction is being sought, not a declaration. In the main action, the applicants are seeking, among other remedies, a declaration that the Firearms Act does not apply to them. The applicants clearly state that they want to have the respondent and its agents restrained from applying or enforcing the Criminal Code and the Firearms Act against the applicants.

Final Determination

69.              The concern that the disposition of an interlocutory motion would amount to a final disposition of the underlying action or application was expressed in an aboriginal law context in Shubenacadie Indian Band v. Canada (Minister of Fisheries and Oceans) (1000), 193 F.T.R. 267 (F.C.T.D.) [hereinafter "Shubenacadie"]. In Shubenacadie, Pelletier J. (as he then was), was asked to grant an interlocutory injunction restraining the Minister from interfering with lobster fishing prior to the end of the lobster season that the applicant band had set for itself, having failed to reach an agreement with the Minister on this matter.

70.              The Court issued a decision one month prior to the end of the proposed fishing season. It held that granting the interlocutory injunction, thereby allowing the applicants to fish without hindrance, would provide relief of the sort that is only properly granted after a judicial review on the merits. Among the cases cited in support of the decision was Gould v. Canada (Attorney General), [1984] 1 F.C. 1133 (C.A.). In Gould, the applicant, an inmate of a penitentiary, challenged a provision denying inmates the right to vote. In the meantime, he brought a motion for an interlocutory injunction allowing him to vote in the upcoming election. The Federal Court of Appeal dismissed the motion, holding that the interlocutory relief would amount to a final disposition by giving the applicant the desired relief in the form of a right to vote before the matter was decided on its merits on judicial review.

71.              Likewise, in Shubenacadie, the granting of the interlocutory injunction would have decided the issue, granting the applicants time to fish beyond that permitted by the Minister. It was also noted that the injunction would have had an effect on other communities, who could also claim treaty-based entitlements similar to those sought by the applicants. On these bases, the Court held the view that these matters are of sufficient importance and complexity that they can only be decided by a trial, and that relief should not be dispensed in the form of an interlocutory remedy.

72.              This motion could arguably be dismissed on this basis, given its timing. An interlocutory injunction restraining the respondent from applying the Firearms Act or the relevant provisions of the Criminal Code would provide the Applicants with the relief that they seek for as long as it takes to obtain a final judgment. They would be able to go through each hunting season until then without having to comply with the registration and licensing provisions of the Firearms Act.

73.              The Applicants are not seeking one-time relief such that the granting of that relief would do away with the need for a final disposition. They are seeking to maintain the status quo that was in effect before the coming into force of the Firearms Act; namely, the use of ordinary firearms for hunting without registration. They are not seeking something that they did not have, such as an extended lobster fishing season, as in Shubenacadie, or a vote in a specific election, as in Gould.

74.              On the basis of the temporal and status quo nature of the relief sought, I would hesitate to dispose of the motion solely on this basis. I therefore move on to consider the other preliminary matter, then the tripartite test.

Injunctive Relief Against the Crown

75.              Section 22 of the Crown Liability and Proceedings Act, quote above, provides that a Court may not grant against the Crown, or against any servant of the Crown, an injunction or an order of specific performance, but may make an order declarative of the rights of the parties.

76.              The Applicants note that Hogg and Monahan, supra, relate the reasons for exempting the Crown from injunctive relief. These reasons are the incongruity of the Queen's Courts issuing an order against the Queen, and the impossibility of punishing the Queen for contempt of court. However, the Applicants plead that the Court can issue an injunction, even against the Crown, to prevent a violation of the Constitution. The Crown, according to Hogg and Monahan, supra, and the Applicants, cannot use immunity from injunctive relief to shield an unconstitutional act.

77.              The Applicants also cite the decision of the Trial Division of this Court in Lévesque, supra, in support of their claim that an exception to the rule against injunctive orders against the Crown exists in Constitutional matters.

78.              Lévesque and Hogg and Monahan, supra, were discussed by Lemieux J. in Paul v. Canada, 2002 FCT 615; [2002] F.C.J. No. 824 (F.C.T.D.) ["Paul"]. In that decision, these authorities were held not to be applicable in support of the claim for a constitutional exception. In his reasons, Lemieux J. offered the following observations at paragraph 79:

I am not satisfied the cases relied upon by the plaintiffs blunt the federal Crown's immunity from interlocutory (versus final) injunctive relief in this case. Justice Beetz in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, said this of {Société Asbestos Limitée c. Société nationale de l'amiante et Procureur général de la province de Québec, [1979] C.A. 342 (Que. C.A.)} at page 148, a case which he characterized as an instance where interlocutory relief was granted to suspend the operation of legislation where the Quebec Court of Appeal had issued an interlocutory injunction restraining the Attorney General and any other person from enforcing any right conferred upon them by Bill-70 and Bill-121 relating to La Société Nationale de l'amiante:

The two statutes in question had been enacted in the French language only, in violation of s. 133 of the Constitution Act, 1876, and the Court of Appeal immediately came to the firm conclusion that, on that account, they were invalid. This is one of those exceptional cases where the merits were in fact decided at the interlocutory stage.

79.              At paragraph 80, the Court distinguished Lévesque from Paul, the case before it:

Lévesque, supra, [...] was not an interlocutory injunction case but a case where Justice Rouleau of this Court, on a judicial review application decided on its merits, issued a mandamus as an appropriate remedy for a Charter breach.

80.              The relief sought in Paul was to enjoin the federal government from pursuing negotiations with the Dogrib First Nation pending the disposition of the action or the inclusion of the plaintiff's Métis group in the negotiation process.

81.              Further, at paragraph 81, Lemieux J. expressed the following rule:

As I see it from the jurisprudence, the Court will not issue an interlocutory injunction against the Crown or a Minister of the Crown in constitutional cases unless, in an exceptional circumstance, the motions judge can decide the merits of the action at the interlocutory stage, which is certainly not the case before me. As a result, I find that an interlocutory injunction is not available against Canada.

82.              This Court is not strictly bound by Paul and, as such, does not have to dismiss the motion for relief against the respondent solely on this precedent. I would hesitate to dismiss the motion on this point. The authorities cited give rise, at a minimum, to the possibility that injunctions may be issued to prevent constitutional violations by the Crown pending final determination of the issues in the main action or application. Otherwise stated, it is not always necessary to be certain that the motions judge can decide the merits of the action at an interlocutory stage before an interlocutory injunction can be issued.

83.              The case before us may not clearly be a case where an interlocutory injunction motion should be granted in order to prevent a constitutional breach, but it is not clearly a case in which the exception allowing for interlocutory relief to prevent constitutional breaches should not apply. Pending further judicial guidance, it would be prudent to decide this preliminary issue in favour of the Applicants and proceed to the tripartite test.

Serious Issue

84.              The rules to be followed when examining a case for the presence of a serious issue were stated by Sopinka and Cory JJ. in RJR-Macdonald. Their remarks on this issue were partially stated at pages 337 and 338. Below are some excerpts of their discussion:

What then are the indicators of "a serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. The decision of a lower court judge on the merits of the Charter claim is a relevant but not necessarily conclusive indication that the issues raised in an appeal are serious [...]. Similarly, a decision by an appellate court to grant leave on the merits indicates that serious questions are raised, but a refusal of leave in a case which raises the same issues cannot automatically be taken as an indication of the lack of strength of the merits.

Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.

Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits. The first arises when the result of the interlocutory

motion will in effect amount to a final determination of the action. This will be the case either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial. [...] The second exception to the American Cyanamid prohibition on an extensive review of the merits arises when the question of constitutionality presents itself as a simple question of law alone (Emphasis added).

85.              In my view, neither of the two exceptions are present. The right to hunt is not a "one-off" right which can only be exercised at a certain time, such as the right to vote being sought in Gould.

86.              The question to be tried in the main action is not a simple question of law of the kind referred to in RJR-Macdonald and American Cyanamid. The mix of factual and legal questions to be decided is sufficiently complex that it goes beyond the kind of question that would be covered by this exception. The promises to which the Crown bound itself through the treaties make up just one example of the issues that cannot be decided as simple questions of law.

87.              The number and variety of allegations in the Statement of Claim that the Respondent denies in its Statement of Defence are a testament to the breadth of issues that the Court will have to decide in the main action. This is therefore a case where neither of the exceptions apply.

88.              Given the above discussion of the variety and complexity of the issues to be tried, it goes without saying that the Applicants have presented a serious question to be tried. The low threshold applicable to this element of the test is satisfied by a comfortable margin. In the absence of the exceptions that would end the analysis at this stage I will proceed to the more contentious element of the test; to wit, irreparable harm.

Irreparable Harm

89.              The Applicants' affidavits and cross-examinations of the affiants leave no doubt as to the harm that the Applicants could suffer if the injunction is not granted. However, the Applicants must satisfy the Court that the harm is not reparable.

90.              In the case at bar, I cannot conclude that the harm will be irreparable. The harm caused by as many seasons without hunting by firearms as it takes to dispose of this matter may be serious, but it could likely be repaired through remedies to be ordered at the conclusion of the main action. Financial compensation could be awarded to the Applicants and remedies could be ordered for the breach of constitutionally-enshrined treaty rights if so declared. These remedies could include the declarations that the Applicants are seeking, as well as orders that the Respondent assist First Nations in re-establishing the hunt and associated cultural institutions which may have been diminished during the period in which hunting was not being conducted.

91.              Alternatively, the Applicants could comply with the law by having their firearms registered with the federal government and obtaining the necessary licenses. To the extent that the FSIN draft legislation is largely similar to the current federal legislation, it would not be difficult to convert federal government registrations and licenses to First Nations registrations and licenses in the event that the Applicants prevail in the main action.

92.              In addition, other remedies could be awarded to compensate for the breach of treaty rights occasioned by federal government licensing and registration requirements, should such a breach be found to have occurred. I am aware of the admonition of Dickson C.J. and LaForest J. in Sparrow that courts must be careful not to avoid traditional common law concepts of property to the determinations of aboriginal rights. It can be argued from there that courts ought not simply to apply common law principles of contract law to the treaties concluded between the First Nations and the Crown.

93.              However, I am also aware of the dissenting opinion of McLachlin J. (as she then was) in R. v. Van der Peet, [1996] 2 S.C.R. 507. McLachlin J. expressed the following qualification of aboriginal rights at paragraph 280:

Any right, aboriginal or other, by its very nature carries with it the obligation to use it responsibly. It cannot be used, for example, in a way which harms people, aboriginal or non-aboriginal. It is up to the Crown to establish a regulatory regime which respects these objectives.

94.              The public interest as represented by Parliament cannot be discounted at an interlocutory stage simply to eliminate all harm to the Applicants. It is along this line of thinking that I hold the view that should the Respondent be found to have violated aboriginal rights with the impugned legislation, the Court can then order compensation and the necessary material resources to restore what may have been lost.

95.              At paragraph 67 of their submissions (March 22, 2002), the Applicants state:

[...] First Nations will suffer irreparable harm to their Treaty Rights if every treaty Indian in Saskatchewan is required to obtain a license, certificate or authorization for the use of firearms and ammunition. The present licensing, certificate and authorization regime will necessarily deny many holders of treaty rights of the preferred means of exercising those rights (Emphasis added).

96.              It cannot be concluded that because the Applicants would be denied their preferred means of exercising treaty rights, they would be denied all means of exercising their treaty rights. They could continue to exercise the right to pursue game on their land while respecting the licensing and registration requirements for their firearms pending determination of the main action. By doing so, the Applicants could mitigate the harm for which they may be compensated if their claims are upheld.

97.              On these bases, I must conclude that the Applicants have not demonstrated a reasonable likelihood of irreparable harm in the absence of the relief sought.

Balance of Convenience

98.              It is not necessary to weigh the balance of convenience, having found that the Applicants have not demonstrated a reasonable likelihood of irreparable harm.

99.              It is regrettable that the Applicants will have to endure at least one season having to make the hard choice between not hunting and complying with a law which they believe violates their rights. However, the reasonable likelihood of irreparable harm has not been demonstrated.

100.           I can only suggest that parties work together to conduct the Case Management process in as timely a manner as possible in order to achieve a fair resolution of this matter.

101.           Therefore, this motion shall be dismissed, costs in the cause.

(Sgd.) "Michel Beaudry"

Judge

Vancouver, B.C.

October 31, 2002